The Council of State breathes new life into the CBD industry

The owners and managers of this generation of shops marketing products based on cannabidiol (CBD), the non-psychotropic molecule of cannabis, will smile again. The Council of State suspended, on Monday January 24, the ministerial decree of December 30, 2021 which prohibited the marketing and consumption of the flowers and leaves of cannabis varieties devoid of narcotic properties. Behind this legal battle lie real economic issues.

Measuring the importance of this decision taken in summary, the highest administrative court, which had brought together a college of three judges, accompanied the publication of its order with a press release and even a tweet. A deployment of means of communication reserved for major decisions.

For several years, the battle has focused on the assessment of the risks that CBD would represent for health. Its content of THC (delta-9-tetrahydrocannabinol), the molecule responsible for the psychotropic effects of cannabis, is 0.2%, a hundred times less than cannabis resin. It is also in application of a decision of the Court of Justice of the European Union that the Court of Cassation had authorized, on June 23, 2021, the marketing of CBD legally produced in another State of the Union. The Court of Luxembourg had invited France to “to assess the available scientific data in order to ensure that the real risk alleged for public health does not appear to be based on purely hypothetical considerations”.

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Disproportionality

In this context, the decree issued on December 30, 2021 by the Ministry of Solidarity and Health had the effect of a cold shower. According to professional unions, this booming CBD commercial sector already had some 1,800 shops in France. However, the sale of flowers or raw leaves would represent 50% to 90% of their turnover, processed products of the cosmetic or food type being marginal. Several traders, who claimed to risk having to go out of business quickly after the ministerial decree, therefore seized the Council of State by means of this emergency procedure.

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“In view of the documents submitted to the proceedings by the parties and the exchanges held during the hearing, it does not follow from the investigation (…) that hemp flowers and leaves with a THC content not greater than 0.30% would have a degree of harmfulness to health justifying a general and absolute ban on their sale to consumers and their consumption, Monday’s decision reads.

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