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An EU Member State may not prohibit the marketing of cannabidiol (CBD) lawfully produced in another Member State when it is extracted from the Cannabis sativa plant in its entirety

by Formula Swiss November 19, 2020 3 min read

An EU Member State may not prohibit the marketing of cannabidiol (CBD) lawfully produced in another Member State when it is extracted from the Cannabis sativa plant in its entirety

Today the Court of Justice of the European Union in Luxembourg released press release no. 141/20 about the judgment in French court case C-663/18.

The court case is about two French directors of a company that distributed CBD vape oil for electronic cigarettes in France. The CBD was produced in Czech Republic from legal hemp plants and extracted from whole plant biomass, including the cannabis leaves and flowers.

In the’s judgment, the Court finds that EU law, in particular the provisions on the free movement of goods between EU member states (which include Norway and Switzerland), precludes national legislation such as that at issue.

The Court observes that the provisions on the free movement of goods within the European Union (Articles 34 and 36 TFEU) are applicable, since the CBD at issue in the main proceedings cannot be regarded as a ‘narcotic drug’.

The Court notes that to define the terms ‘drug’ or ‘narcotic drug’, EU law inter alia to two United Nations conventions: the Convention on Psychotropic Substances and the Single Convention on Narcotic Drugs. CBD, however, is not mentioned in the former and, while it is true that a literal interpretation of the latter might lead to its being classified as a drug, in so far as it is a cannabis extract, such an interpretation would be contrary to the general spirit of that convention and to its objective of protecting ‘the health and welfare of mankind’. The Court notes that, according to the current state of scientific knowledge, which it is necessary to take into account, unlike tetrahydrocannabinol (commonly called THC), another hemp cannabinoid, the CBD at issue does not appear to have any psychotropic effect or any harmful effect on human health.

The Court then finds that the provisions on the free movement of goods preclude local legislation. The prohibition on marketing CBD constitutes a measure having equivalent effect to quantitative restrictions on imports, prohibited by Article 34 TFEU. The Court nevertheless points out that that legislation can be justified on one of the grounds of public interest laid down in Article 36 TFEU, such as the objective of protecting public health invoked by the French Republic, provided that that legislation is appropriate for securing the attainment of that objective and does not go beyond what is necessary in order to attain it.

While that latter assessment is for the national court to carry out, the Court provides two insights in that regard.

First, it notes that it would seem that the prohibition on marketing would not affect synthetic CBD, which would have the same properties as the CBD at issue and which could be used as a substitute for the latter.

Second, the Court accepts that the French Republic is indeed not required to demonstrate that the dangerous property of CBD is identical to that of certain narcotic drugs. However, the national court must assess available scientific data in order to make sure that the real risk to public health alleged does not appear to be based on purely hypothetical considerations.

A decision to prohibit the marketing of CBD, which indeed constitutes the most restrictive obstacle to trade in products lawfully manufactured and marketed in other Member States, can be adopted only if that risk appears sufficiently established.

The French authorities - of course - failed to demonstrate any risk of CBD being a public health risk and thus lost the case against the two former directors of the French company.

This court decision will have precedence in all EU Member States.

Sources:

Curia.europa.eu (press release and full judgement in French).

Regulation (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 establishing rules for direct payments to farmers under support schemes within the framework of the common agricultural policy and repealing Council Regulation (EC) No 637/2008 and Council Regulation (EC) No 73/2009 (OJ 2013 L 347, p. 608); Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ 2013 L 347, p. 671).

United Nations Convention on Psychotropic Substances, 1971, concluded in Vienna on 21 February 1971 United Nations Treaty Series, vol. 1019, No 14956).

United Nations Single Convention on Narcotic Drugs, 1961, concluded in New York on 30 March 1961, as amended by the 1972 Protocol (United Nations Treaty Series, vol. 520, No 7515).

Formula Swiss
Author: Formula Swiss


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