What did the CJEU find?
The UN drug control treaties that the relevant EU laws refer to were drafted in the 1960s and 70s, and contain no direct reference to CBD. The CJEU concedes that a literal interpretation of the 1961 UN Single Convention may conclude that CBD is considered a drug – because it is extracted from the flowering tops of a plant of the Cannabis genus, which constitutes an ‘extract of cannabis’ under Single Convention definitions.
However, the CJEU further noted that CBD “does not appear to have any psychotropic effect or any harmful effect on human health on the basis of available scientific data.” The CJEU also states that international treaties should be interpreted in light of their objectives as well as their ordinarily-understood terms. The objective of the signatories of the Single Convention, as the CJEU notes, is to be “concerned with the health and welfare of mankind and conscious of their duty to prevent and combat drug addiction.” The CJEU found that it would be ‘contrary to the purpose and general spirit’ of the Single Convention to include CBD under the definition of drugs, given that CBD is not known to have psychoactive effects. (The Court notes that there is precedent for this within the Single Convention, where cannabis flowers that have had their resin extracted are exempted from definition as a ‘drug’ due to the low level of psychoactive ingredients left in them.)
As a result, the French ban on whole-hemp CBD is invalid and must be reviewed. The CJEU notes that rules to restrict the sale of CBD on the basis of public health are permitted, but that they must be proportionate to risks established on the grounds of scientific evidence, rather than based on hypothetical concerns. The issue is now with the French courts to review, and the government will likely have to amend its hemp-related legislation line with EU law.
Why is this important?
First of all, this ruling is important because it opens up the EU’s second-largest economy to hemp-derived CBD products that were previously inaccessible. It’s also possible that the ruling will encourage lawmakers to approve the domestic cultivation and processing of hemp for CBD – a major boon for French hemp farmers, who account for 40% of all EU-cultivated hemp.
However, the CJEU’s decision has a wider impact than French regulation. As explained by law firm Allen & Overy, CJEU rulings create a binding interpretation of EU law for EU Member States and EU institutions even if they were not involved in the specific ruling. This means the case law and court interpretation applies in other member states where hemp-derived CBD is restricted on spurious grounds – such as Portugal. It may also lead to the European Commisson’s reversing its restrictive view on CBD novel food applications.
As Hanway has reported, hemp flower-derived novel food applications are currently paused by the European Commission (EC), due to their preliminary view that the products are narcotics under UN treaty definitions and so cannot be permitted in food. The EC has awaited the CJEU’s ruling in this case – which now confirms that CBD produced and processed legally from EU hemp is not a drug within the meaning of the Single Convention. This ruling therefore establishes a clear justification to accept CBD novel food applications, as well as the use of plant-based CBD in products such as cosmetics.
Changes are unlikely to happen overnight – but this represents positive news for the European CBD industry, which has risked being overshadowed by the UK’s more accommodating regime and the USA’s movements towards proper CBD regulation.
The EC may hold back on a final novel foods decision until the UN’s Committee on Narcotic Drugs (CND) vote on cannabis rescheduling due in December. However, so far the much-touted proposal to exempt low-THC CBD preparations from international control appears unlikely to pass. What this would mean for the EC’s decision is uncertain. However, the CJEU is the ultimate interpreter of EU law and has now issued a clear view that hemp-derived CBD is not a narcotic. Even in the event of continued international ambiguity, there is now a forceful rationale to green-light CBD products that has been issued from the heart of the EU.