The regulation of CBD/Hemp products has been a very hot topic in France these past months since the “Kanavape” ruling. In Kanavape, the CJEU asked France to review its very strict CBD regulations, more specifically its Regulation (arrêté) of 22 August 1990 (CJEU, 19 November 2020, C-663/18) in light of the free movement of goods principle. In the European Union, France has one of the toughest laws against cannabis but the highest rate of cannabis use.
After the Kanavape ruling, the debate took a political dimension: France had to submit a new draft Regulation to the European Commission and French courts have been giving effect to the European ruling directly, despite the legal uncertainty created by this situation.
On December 31, 2021, the long-awaited new Regulation was finally published. However, it was not well received by actors in the sector because it expressly bans the marketing of flowers and leaves of certain varieties of cannabis to consumers, even when the THC content of these flowers and leaves is below the 0.3% threshold (below which they are supposed to be devoid of any narcotic properties).
Therefore, relevant French professional organizations filed a petition before the Conseil d’Etat (the highest French administrative court) to request a stay of this ban. On January 24, 2022, the Conseil d’Etat granted this stay.
While waiting for the Conseil d’Etat to make a final decision on the legality of the ban, the ban is therefore suspended and CBD street and online stores can continue selling cannabis flowers and leaves in France.
The French government had justified this ban by relying on public health – risks to consumer health – and public safety – and the difficulty for the French authorities to distinguish between “narcotic” and “non-narcotic” flowers. On these points, the Conseil d’Etat held that:
- “it does not result from the investigation, at the date of this decision, that hemp flowers and leaves with less than 0.30% THC are harmful to health to justify a general and absolute prohibition of their sale to consumers and their use, this percentage being moreover the one retained by the contested regulation itself, in article 1-I , to characterize the plants authorized for cultivation, importation, exportation and industrial and commercial use”; and
- that “it does not follow either that it is not possible to implement the means to control this percentage, while the means of control are detailed, for the whole of the plant, in the annex of the regulation, in order to distinguish the leaves and flowers of hemp which, because of their very low THC content, could be regarded as devoid of narcotic properties, within the meaning of article R. 5132-86 – I of the French code of public health.”
The Conseil d’Etat concluded that “this general and absolute prohibition is disproportionate […] which creates a serious doubt as to its legality”. Not the end of the story but clearly an important success for CBD professionals.