Opinion from EU high-court adviser buoys CBD stakeholders

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CBD should not be prohibited from trade among EU member states, a legal adviser to the European Court of Justice (ECJ) has suggested. Advocate General Evgeni Tanchev’s recent opinion challenges current French rules that forbid the marketing of products derived from hemp flowers, and from the whole hemp plant, including CBD.

The advisory stems from a case in which 2 principals of the French firm Kanavape were convicted under national narcotics laws and handed 18-month suspended prison sentences plus fines of €10,000. The case centered on Kanavape’s marketing and sales of e-cigarettes with CBD oil imported from the Czech Republic.

French laws strict

French hemp laws, considered some of the strictest within the EU, allow only for the production of fiber and seeds; whole-plant processing also is not allowed, making it impossible to extract CBD, which is concentrated in the plant’s flowers.

Tanchev advised that the import of CBD cannot be banned under EU rules regarding the free movement of goods between and among member states.

While French authorities in the original case cited a “precautionary principle” aimed at protecting consumers as the basis for the original Kanavape sanction, Tanchev said the French government has not clearly identified any harmful effects from the use of CBD oil in e-cigarettes.

Not a drug

“In the current state of scientific knowledge it has not been established that cannabidiol (CBD) oil has psychotropic effects,” the Advocate General said in an opinion requested by the ECJ, the EU’s highest court, which was handed the case by a French appeals court.

He also noted that CBD shouldn’t be considered a drug under French law, to be consistent with the 1961 United Nations Single Convention on Narcotic Drugs which does not consider CBD a narcotic.

While the ECJ is not bound by Tanchev’s opinion, its final rulings tend to follow the Advocate General’s findings.

Clear rules needed

Kanavape has said that the drawn-out nature of the proceedings in the case, as well as its referral to the ECJ, shows the need for a clear framework for the production and sales of CBD in France and throughout the EU. The company’s lawyers noted that the outcome could eventually force other countries to revisit their regulations regarding CBD production and sales in the context of EU rules on the free movement of goods.

Sita Schubert, General Secretary of the newly-formed European Medicinal Cannabis Association (EUMCA), agreed the opinion and eventual ECJ ruling could have an effect on broader rules for CBD. “It clearly underlines that there shall be an alignment for introducing CBD products to the market,” she told EURACTIV.

The Luxembourg-based ECJ is expected to issue a final judgment in September 2020.

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