Stehlin & Associés and the Cannabis legal team at Mackrell.Solicitors examine the Kanavape case, in the light of the decision rendered Thursday, November 19, 2020 by the Court of Justice of the European Union ("CJEU") in the C case -663/18 (Kanavape) concerning the distribution of electronic cigarette cartridges containing cannabidiol (CBD) in France.

In the “Kanavape” case, the managers of a French company (Catlab SAS) are prosecuted for illegal marketing of electronic cigarette liquid containing CBD oil imported from the Czech Republic from all the elements of the plant of hemp grown on site in accordance with Czech and European regulations.
The grievance against French entrepreneurs is based on the current French regulations (ordinance of 22 August 1990) which only allow the marketing in France of products derived from CBD extracted from the fibers and seeds of the hemp plant, to the except flowers and leaves.

At first instance, Catlab executives were sentenced by the Marseille Criminal Court in 2017 for drug trafficking and violation of the legislation on medicines. They appealed against the decision to the Aix-en-Provence Court of Appeal, which then noted both that synthetic CBD (having characteristics and effects identical to natural CBD) is legal in France and that Member States allow the marketing of products whose CBD component is obtained from the flowers and leaves of the hemp plant.

The Court of Appeal therefore put a preliminary question to the CJEU on the compliance of French regulations with European Union law. This issue is dealt with below.

In our previous joint article of July 17, 2020, we analyzed the position in this case of the Advocate General before the CJEU. As we might expect, this decision of the CJEU follows this position which castigates a "national regulation prohibiting the marketing of cannabidiol (CBD) legally produced in another Member State, when it is extracted from the cannabis sativa plant in its entirety and not just its fibers and seeds ”.

The eagerly awaited decision of the CJEU recalls that the free movement of goods between the Member States under Article 34 of the Treaty on the Functioning of the European Union ("TFEU") is a fundamental principle which cannot be limited only by Article 36 TFEU. On the basis of the latter, the CJEU indicates that “it is for the national authorities invoking it to demonstrate in each specific case, taking into account the results of international scientific research, that their regulation is necessary to effectively protect interests referred to in that provision and, in particular, that the marketing of the products in question presents a real risk to public health which must be thoroughly assessed ”.
More interesting than the reminder of this principle, the CJEU takes a position in this decision on the narcotic nature of the CBD and notes that the latter "does not appear to have a psychotropic effect or harmful effect on human health on the basis of scientific data available ", and that" moreover, according to these elements of the file, the variety of cannabis from which this substance was extracted, which was legally cultivated in the Czech Republic, has a THC content not exceeding 0.2 % ”(French legal maximum THC rate for the plant from which the CBD is extracted). As such, “since CBD does not include a psychoactive principle in the current state of scientific knowledge […], it would be contrary to the aim and the general spirit of the single convention to include it in the definition of "narcotics" within the meaning of this convention, as a cannabis extract ”. The CJEU therefore does not consider CBD to be a narcotic product within the meaning of the Single Convention.
However, the CJEU clearly understood that, in order to protect “the health and life” of individuals, a member state can establish precautionary principles to “take protective measures without having to wait for the reality and the seriousness of these risks are fully demonstrated ”. The risks in question should, however, not be based solely on "purely hypothetical considerations".
In fact, in its judgment, the CJEU remains cautious and specifies that the regulations must be “suitable for guaranteeing the achievement of the objective of protecting public health and not going beyond what is necessary for 'he is reached'. The CJEU then left it to the referring court to ensure, on the basis of the available scientific data, "that the real alleged risk to public health does not appear to be based on purely hypothetical considerations".

Thus, without any scientific proof of a difference between a CBD product extracted from the whole plant or only from its fibers / seeds, the French regulations are not able to justify any distinction between the products resulting from these two processes. manufacturing.

This decision is of particular importance for all players in the CBD market in France and throughout the EU. Indeed, France should now open its market to products containing CBD extracted from the entire plant.

The absence of restrictions on the use of parts of the hemp plants on the French market and those of the EU is a positive contribution for companies in the sector and for the creation of a more harmonized industry at the scale of the EU, in particular by standardizing the entire manufacturing process from seed to the finished product. Thus, the decision of the CJEU should, in particular, considerably improve the efficiency of industrial logistics in the sector, while promoting the creation of safety and quality standards.

Beyond improving the supply, this decision should not particularly have an impact on consumption habits in France since French regulations concerning the THC level should remain unchanged, whether it concerns the rate. maximum THC of the plant from which the CBD is derived (0.2%) or the level of THC in the finished product (0%).

Chance of the calendar, UN delegates are due to meet in December to vote on the staggering nature of the CBD under the Single Convention. One can therefore wonder about the possible influence that the position newly expressed by the CJEU, on this point, will have on the conclusion of the UN delegates.

Stehlin & Associés is an independent French law firm based in Paris. The sales team assists its French and foreign clients on all regulatory and commercial issues with an industrial approach to many sectors, including agri-food, agrochemicals and chemicals, luxury products, financial services, online sales .

Mackrell.Solicitors Cannabis Legal Team (based in London and Birmingham) provides a full range of legal and business services to everyone in the growing cannabis and CBD industry.

As members of the international network, Mackrell International, we provide our clients with legal solutions in over 60 countries from over 170 offices.