“A 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 and not solely from its fibre and seeds”. – the European Court of Justice (ECJ)
Beleaguered by a patchwork of regulation and shifting goalposts, these words from came as music to the ears of the burgeoning CBD industry in Europe.
The case followed the criminal conviction of the directors of a French vaping company, prosecuted following the use of CBD extracted from hemp plants (including their leaves and flowers) lawfully grown in the Czech Republic.
French legislation prohibits the marketing of CBD lawfully produced in another member state when it is extracted from the cannabis sativa plant in its entirety. Current law allows only the commercial use of hemp fibres and seeds.
The French Court asked the ECJ to determine whether its domestic laws were compatible with the free movement of goods.
The ECJ determined that free movement of goods should apply to CBD. Importantly, this was decided on the basis that CBD is not a narcotic (which of course cannot benefit from such freedom).
The ECJ ruled that member states cannot prohibit the marketing of CBD, lawfully produced in another member state when that CBD is extracted from the cannabis sativa plant as a whole. Such a prohibition can only be justified by the objective of protecting public health but countries should not go beyond what is necessary in order to achieve this. Member states wishing to introduce such rules must assess available scientific data to ensure that any risk to health alleged is real and not based solely on hypothetical considerations. A prohibition will only be lawful if that risk is sufficiently established.
Why is this important?
In our last newsletter, we reported on the shockwaves created when the European Commission paused all novel food applications for naturally occurring CBD products.
The FSA’s position is now entirely in line with that of the ECJ. In making its recent decision, the court concluded that:-
- The (natural) CBD product in issue did not appear to have any psychotropic effect or any harmful effect on human health.
- Synthetic CBD would be allowed under French law but has the same properties as the banned natural substance. From a public health perspective, there was no difference between the two.
- According to the current state of scientific knowledge, the CBD in this case appeared to have no psychotropic effect or any harmful impact to humans.
In celebrating the result, Managing Director of the European Industrial Hemp Association Lorenza Romanese welcomed the ruling noting that, in her view, what the European hemp sector needs now is “a fair and coherent legal framework”.
The Commission has confirmed it, “takes note of the Court’s ruling…and will carefully assess the judgment”. Its approach to the paused novel food applications will no doubt await events at the UN in early December when the UN is due to vote on a World Health Organisation (WHO) recommendation that cannabis be reclassified under the Convention – it is currently in the same category as cocaine and heroin.
A WHO scientific working group has examined the risks of CBD, cannabis and THC and concluded that the current classification could not be justified. WHO also recommends that preparations with a THC content below 0.2% should be excluded from the Convention altogether.
In the meantime, those placing products on the UK market can enjoy the relative certainty of the timetable set out by the FSA earlier this year. In summary:-
- all CBD products currently on sale can remain so until 31 March 2021, by which time the CBD ingredient must be subject to a valid novel food application. The products can then remain on sale until the application is determined;
- if no application is made, the products should be withdrawn from sale;
- no new products should be placed on the market now.
From April 2021, the FSA will encourage Trading Standards to take enforcement action against businesses contravening the above position. As a result of this clear framework, it is anticipated that the UK market will begin to flourish ahead of its European counterparts.
If you have any questions about this update or the use of CBD in food and beverages, please contact Rhian Greaves in our Regulatory team.