On November 19, 2020, the Court of Justice of the European Union (CJEU) rendered its judgment in case C-663/18, known as Kanavape.
The Court was seized of a preliminary ruling by the Court of Appeal of Aix-en-Provence concerning the conformity with European Union law of Article 1 of the decree of August 22, 1990, which limits the cultivation, import, and industrial and commercial use of hemp to only the fibers and seeds of the plant, and thereby prohibits the import and marketing of e-liquid for electronic cigarettes containing cannabidiol (CBD) oil obtained from whole hemp plants.
It should be noted that the preliminary ruling mechanism allows a national court to ask the CJEU to interpret Union law. It is then up to the national court to resolve the dispute in accordance with the CJEU's judgment.
In this judgment, the CJEU considers that, in the current state of scientific knowledge and on the basis of international conventions in force, CBD oil does not constitute a narcotic product. It deduces that the provisions relating to the free movement of goods are applicable to this product and that a national measure prohibiting the marketing of CBD derived from the whole plant constitutes an impediment to free movement.
However, it specifies that such a measure may be justified by an objective of public health protection, provided that it is necessary and proportionate. It then recalls that it is for the referring court to assess, in light of the available scientific data, whether harmful effects on human health could be linked to the use of CBD, justifying the application of a precautionary principle, and whether the measures taken are suitable for achieving the objective of public health protection.
In this case, and in order to guide the court in its assessment, the CJEU stresses that the French regulation does not seem to meet this condition insofar as the marketing ban does not apply to synthetic CBD, which would have the same properties as natural CBD.
The French authorities take note of this judgment.
They wish to emphasize that, in this judgment, the CJEU recognizes that the application of the precautionary principle could, subject to conclusive scientific evidence, justify regulations restricting the marketing of CBD-based products. They are studying ways and means to incorporate its conclusions.
The authorities reiterate their warnings regarding the potentially harmful effects of the CBD molecule, which is still little known. They also point out the health risks associated with Δ-9-tetrahydrocannabinol (THC), a molecule classified as a narcotic, which hemp products may contain. They call for the utmost vigilance concerning the methods of consumption of these products, particularly smoking, whose toxicity is proven.
Furthermore, it is recalled that products containing CBD remain subject to French legislative provisions, and more particularly the following: They may not, under penalty of criminal sanctions, claim therapeutic allegations, unless they have been authorized as a medicine by the National Agency for the Safety of Medicines and Health Products or the European Commission on the basis of a dossier evaluated according to scientific criteria of quality, safety, and efficacy.
Advertisements for CBD-containing products must not create confusion between cannabis and CBD, and thus promote cannabis. This practice is likely to constitute the criminal offense of incitement to use narcotics.
Finally, the French authorities believe that the development of a common European approach to CBD-based products would be desirable. In this regard, they are continuing their discussions with other Member States and the European Commission.
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