The French ban on hemp-derived cannabidiol (CBD) is contrary to European law according to Advocate General Tanchev, which may have a big impact on the CBD industry in Europe.
Yesterday, Advocate General Tanchev presented his opinion before the Court of Justice of the European Union (CJEU) declaring the French ban on hemp-derived cannabidiol (CBD) contrary to EU law, which could have major implications for the CBD industry in Europe if the Court follows the Advocate General’s opinion.
Currently, Antonin Cohen, former manager of Kanavape, is being prosecuted in France for selling vaping products manufactured with natural CBD. The French regulatory framework currently prohibits the marketing of products derived from the whole plant, and thus of all products containing CBD, whereas the use of synthetic CBD (chemically identical) is generally permitted.
In his opinion, the Advocate General concludes that: “[EU law] preclude[s] a Member State from prohibiting the importation of cannabidiol oil from another Member State, where that oil is extracted from the whole hemp plant, and not solely from its fibre and seeds, since, in the current state of scientific knowledge, it has not been established that cannabidiol oil has psychotropic effects.”
The Advocate General further advocated for a proportionate regulation of CBD products in Europe which is less restrictive on the free movement of goods (for example through the establishment of a maximum CBD content).
Impact on the European CBD market
Allen & Overy is representing Cohen in the proceedings for a preliminary ruling before the CJEU (Case C-663/18).
Eveline Van Keymeulen, Head of Allen & Overy’s Life Sciences Regulatory and Cannabis practices, who is assisting Cohen in the proceedings, said: “Should the Court follow the Advocate General’s opinion, its decision will have a significant impact on the CBD industry in Europe, which is losing market share compared to other regions such as the US and Canada, because of the fragmented and inapt legal framework.
“As the Court’s decision would set a binding precedent with European reach, it would not only require France to adapt its legislation in order to allow the marketing of CBD extracted from the entire hemp plant, but may also force other national regulators to (re)examine existing restrictions related to hemp-derived products in light of the free movement of goods in the EU.
“The Advocate General’s opinion is therefore a crucial step towards much needed regulatory harmonisation and legal certainty for the CBD industry in Europe. In addition, a clear and proportionate regulation of CBD-based products will ultimately benefit EU consumers.”
The opinion of the Advocate General is available in English (here) and in French (here).
The Court’s decision is expected to be rendered from September 2020 onwards. In the vast majority of cases, the Court follows the opinion of the Advocate General.
Lack of clarity
Antonin Cohen, co-director of Kanavape, said: “When we launched our product in 2014, CBD was unknown. Our goal has always been to market a useful and legal product, and we conducted a legal analysis to validate the compliance of CBD. The duration of these proceedings – more than five years – and the referral to the CJEU demonstrates the lack of clarity in the current regulations, and the need to provide a clear framework for the production and use of CBD in France and Europe.
“From a personal point of view, this opinion is a real relief. It is very difficult to combat these legal challenges for so long but I have pursued this approach because it is vital to create clear regulations to protect the health of consumers and to support the competitiveness of French and European companies in a global industry that is growing very fast.”
In previous cases, the Luxembourg-based Court of Justice found that other cannabis-based products did not fall under the free movement of goods, including cannabis sold at Dutch “coffee shops” that contains high levels of THC. Kanavape was clear in its marketing that its products contained no THC and testing by the French health ministry found none.
The French government argued that it banned CBD products out of an abundance of caution, but Tanchev wrote that for the government to ban something it would need to first identify “potentially negative consequences for health,” which it did not. If France were to find that such a risk existed after “a comprehensive scientific assessment,” it could then restrict the import of CBD, he wrote. Azriel from https://biomdplus.com
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