French Interministerial Mission on Drugs (MILDECA) reacts to CJEU Kanavape judgment

The judgment, which was rendered on 19 November 2020, confirmed that CBD is not a narcotic drug and that EU member states may not prohibit its marketing (see our previous post, CJEU landmark ruling confirms that CBD is not a narcotic drug and that member states may not prohibit its marketing).

In its statement, MILDECA expressly:

• Recognises the conclusions of the CJEU judgment and confirms it is studying possible ways to address these conclusions in French regulations; and
• Calls for the development of a common European approach to CBD-based products and confirms it will continue its dialogue with other EU member states and the European Commission in this respect.

The update summarises the context of the judgment and the conclusions of the CJEU. It recognises that the CJEU points out that the French ban on CBD does not appear to be necessary nor proportionate to the objective of protection of public health it was meant to attain insofar as the ban does not apply to synthetic CBD, which has the same properties as natural CBD.

MILDECA confirms that:

“The French authorities take note of this judgment. They would like to underline that, in this judgment, the CJEU recognised that the application of the precautionary principle could, subject to convincing scientific evidence, justify regulations restricting the marketing of CBD-based products. They are studying ways and means in order to take these conclusions into account.”

MILDECA further reiterates its warnings about:

• The “potentially harmful effect” of the CBD molecule, “as yet little known” – without however indicating these potentially harmful effects and despite repeated confirmations from the World Health Organisation (WHO)’s Expert Committee on Drug Dependence (ECDD) that “CBD does not appear to have abuse potential or cause harm” and that “there is no evidence of […] any public health related problems associated with the use of pure CBD.”
• The health risks associated with tetrahydrocannabinol (THC), a molecule that is classified as a narcotic and may be contained in hemp-derived products.

It calls for the “utmost vigilance” with regard to the methods of consumption of these products, in particular by way of smoking, which is “known to be toxic”.

Ultimately, MILDECA emphasises that, despite the CJEU decision, the marketing of CBD-based products remains subject to the French legislative provisions, in particular the following rules, which are both subject to criminal sanctions:

• CBD-based products may not make therapeutic claims unless they have been authorised as a medicinal product by the French ANSM or the European Medicines Agency (EMA).
• Advertising of CBD-based products must not create any confusion between cannabis and CBD and therefore promote cannabis (e., constitute an incitement to use drugs).

Impact of MILDECA’s statement

The impact of MILDECA’s reaction to the CJEU judgment can be summarised as follows:

• First, it confirms that the French competent authorities recognise the conclusions of the CJEU judgment and accept that the current French ban on CBD-based products is contrary to EU law – be it not in so many words. While the authorities also specifically preserve their right to “restrict” and hence regulate the marketing of CBD-based products in light of the precautionary principle, an evolution towards a more proportionate and risk-based regulation can be expected.
• Second, it supports the expectation that active enforcement of the French ban on CBD is likely to be suspended until the French government has taken a clear position on the way forward. However, meanwhile, prosecution of CBD businesses may continue and focus on the communication and promotion regarding such products (the use of therapeutic claims, and possible confusion with – narcotic – cannabis products), so CBD businesses should be mindful to comply with these rules (with are subject to criminal sanctions).
• Last but not least, it indicates that France may not take any final stance on the regulation of CBD-based products until a common EU approach has been agreed on. The French authorities call specifically for cooperation amongst EU member states and with the European Commission, which is likely to encourage further regulatory harmonisation in Europe, hopefully in a not-too-far-away future.

Consequently, while the road is still long, the CJEU judgment may indeed represent the dawn of a new era for CBD in Europe.

This post was originally co-authored by Eveline Van Keymeulen.