Following months of operating in the shadow of a prospective ban, CBD retailers across France, thousands of which are thought to generate more than half of their income from sales of raw CBD flower, have welcomed the decision. On December 29, France's highest administrative court officially overturned a government ban that had been in force since 2021 and prohibited the sale of hemp flower and leaf that had been infused with cannabidiol (CBD), the non-psychoactive component of cannabis.
CBD in France
Following the controversial Kannavape case, the French government prohibited the sale of hemp flowers and leaves in December 2021 with the implementation of Article R. 5132-86 of the French Public Health Code. The law created a general and complete ban on the marketing of the substance in its raw form, either alone or mixed with other ingredients. Authorities argued that this law was necessary as it would be impossible to distinguish which flowers contained high THC and which flowers did not. This was in direct conflict with the CJEU's judgement. The Court of Justice of the European Union (CJEU) declared in 2020 that CBD is not a narcotic, and that EU Member States may not prohibit the marketing of CBD when extracted from the complete plant.
In a recent decision by the French Council of State (Conseil d’État) , this law was recently deemed "disproportionate" by France's highest administrative court. The Court ruled that "CBD has relaxing properties as well as anticonvulsant effects but does not have a psychotropic effect and does not cause addiction" Therefore, they are not narcotic.
President of the AFPC, Piotrowski François Guillaume, commented: “As the representative of more than 300 farms involved in the production of active hemp, the AFPC welcomes the decision of the Council, which will allow all the players in the French CBD sector, which currently has more of 30,000 jobs, to develop their activities serenely.”
Benjamin-Alexandre Jeanroy, CEO of Paris-based cannabis consulting firm, Augur Associates, has also welcomed the good news, however, he highlights that France has now “just made it back to where we should have been in 2018.” Jeanroy told Cannabis Wealth: “There is still much to do. We need to work on and implement a regulation favourable to sustainably developing the cultivation, extraction, processing and distribution chains of qualitative wellness CBD products to consumers.
“The catalogue of available varieties needs to become broader and more accessible, and the THC limits raised to 1%. But before all, I think we need to stay strongly careful to curb the desire of some actors with short-term interest; to limit CBD products to the CBD molecule, for example. Or that wish to implement rules regarding the alimentary products, that will de facto exclude everyone but actors with the most financial means. However, the industry must continue to take the lead in regulatory innovation and can not solely rely on the judiciary. Political will and an administrative conscientisation that the wrong path has been followed for long enough must come to pass if France ought to remain a European leader in hemp. All these topics have been explored since 2019 by Augur Associates’ white paper on hemp wellness produced for the French Syndicat Professionnel du Chanvre (SPC).”
What does this mean for Ireland?
In Ireland, the sale of CBD flow has blossomed in recent years, with CBD becoming a regular household product for many people. However, with the recent judgment from the Irish Courts regarding CBD gave little hope to Irish CBD retailers and Hemp farmers of a future Irish market. The High Court rejected a test case that contested Ireland's zero-tolerance approach to cannabis-based products with minute amounts of THC. According to Mr. Justice Owens, restricting the supply of pharmaceuticals was an appropriate legislative strategy that would maximize public safety.
This ruling left many retailers in fear as the current law imposes a minimum of 10 years in prison for those who are found in possession of more than €13,000 of cannabis for sale and supply. Retailers in Ireland have been targeted, resulting in multiple seizures of CBD flowers imported from other EU countries, and raids on their homes and businesses. Consumers have also been charged with possession of cannabis when in possession of CBD flowers. Currently, a number of retailers are awaiting a hearing of their cases before the High Court.
The Future
While we await further guidance from the Irish Courts, it is doubtful the High Court will deviate from its previous ruling. It is hoped one of the many retailers facing prosecutions will continue to fight this issue in the Supreme Court. What is needed from the Courts is for the Court to delve deep into this issue, with a true analysis of the Misuse of Drugs Act 1977 and its effects on the CBD and Hemp industry in Ireland.
While waiting on this to come to fruition, it was understood that the European Commission was actively assessing the situation in Ireland. With many expect the European Commission to penalise Ireland for its divergence from EU precedent with regard to CBD and Hemp. However, in correspondence with BusinessCann it has emerged that there will be no punitive action as the European Commission has yet to determine, itself , the status of CBD. The European Commission statement said that ‘it is for the Irish authorities to follow up on the Court judgement’.
However, The Hemp Federation of Ireland (HFI) says the EC must intervene to protect Irish consumers and industry operators as Irish police and courts prepare to proceed with further penal charges and hearings.
In supporting comments to its position, the EC told BusinessCann that the KanaVape decision is not a free pass as it is yet to be satisfied on the safety of CBD products. It says: “We stress that the Kanavape court case does not amount to free marketing of CBD and that, in particular, EU food law applies.
“We also stress that under the novel food regulation, CBD is not authorised – EFSA has been asked for an opinion, but the conclusion is pending until there is more data available on the matter. The legislation on Novel Foods allows for new products to be placed on the EU market only after they have been found safe by the EFSA.”
Hemp Federation Ireland wrote again to the European Commission on December 21 requesting an urgent and immediate intervention. It is hoped a response will be forthcoming by the end of the month.