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Highest European Court confirms that cannabidiol is not a narcotic drug and that EU Member States may not prohibit its marketing

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Eveline Van Keymeulen

Counsel

Paris

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19 November 2020

Today, on 19 November, the Court of Justice of the European Union (CJEU) delivered its long-awaited decision in Case C-663/18 (Kanavape) ruling that a member state may not ban the marketing of cannabidiol (CBD) when extracted from the Cannabis Sativa plant in its entirety. 

The CJEU clearly suggests that the French general ban on cannabidiol (CBD) is contrary to European Union (EU) law unless French regulations were to be considered appropriate and proportionate for the protection of public health by the referring court (the Court of Appeals of Aix-en-Provence).

In its judgment, the Court confirms, as did the Advocate General, that “the CBD at issue in the main proceedings is not a drug within the meaning of the Single Convention” given that “CBD does not contain a psychoactive ingredient in the current state of scientific knowledge […] [and] it would be contrary to the purpose and general spirit of the Single Convention to include it under the definition of ‘drugs’ within the meaning of that convention as a cannabis extract.” The Court concluded that “[the EU provisions on the free movement of goods] must be interpreted as precluding national legislation which prohibits the marketing of 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, unless that legislation is appropriate for securing the attainment of the objective of protecting public health and does not go beyond what is necessary for that purpose”. In this respect, the Court underlined that the fact that the French “prohibition would not affect the marketing of synthetic CBD that has the same properties as CBD extracted from the Cannabis sativa plant in its entirety and that could be used as a substitute for the latter […] would be such as to indicate that the legislation in the main proceedings was not appropriate for attaining that objective in a consistent and systematic manner.”

Allen & Overy is representing Antonin Cohen, former manager of Kanavape, in the proceedings for a preliminary ruling before the CJEU. Antonin Cohen is being prosecuted in France since 2014 for selling vaping products manufactured with natural CBD, a non-psychotropic substance contained in the hemp (Cannabis sativa) plant. France, which is the largest hemp producer in Europe, however, currently prohibits the marketing of products derived from the whole plant, and therefore of all products containing natural CBD.

Eveline Van Keymeulen, Head of Allen & Overy's Cannabis practice, who is assisting Antonin Cohen in these proceedings, comments: “This long-awaited decision is a landmark decision for the CBD industry in Europe, the development of which has been hindered seriously by the fragmented and inadequate legal framework to date. Not only does Europe’s highest Court unequivocally – for once and for all – confirm that CBD is not a narcotic in light of the spirit of the international conventions, it also strongly suggests that the French ban on hemp-derived CBD is contrary to EU law, while leaving the final word to the French judge. If the French court indeed confirms that the French ban is contrary to EU law, France will have to change its regulations in order to provide an adequate and proportionate framework for the marketing of CBD extracted from the whole hemp plant.

However, the impact of this decision goes way beyond France. The Court’s decision sets a binding precedent with European reach: its interpretation of EU law is binding on the European institutions – including the European Commission – and will require other EU member states to assess their national rules applicable to the marketing of natural CBD in light of the clear criteria provided by this decision. Today’s judgment should therefore lead to more regulatory harmonisation and legal certainty which is indispensable for the further development of the CBD industry in Europe. Most importantly, a clear and proportionate regulation of CBD-based products will ultimate benefit EU consumers.”

Antonin Cohen, founder and CEO of Harmony and former co-director of Kanavape, comments “This verdict is an important step in ensuring the safety of consumers of CBD products. In 2014, I created the first CBD vaporiser. Since then, demand has grown strongly and hundreds of companies have launched their products. The lack of clear regulations prevents the market from developing in a safe way. It is essential to develop strict quality standards in the interest of consumers to avoid the circulation of adulterated products. My objective is to improve access to the benefits of these plants, within a legal and secure framework. It is not right to limit research and prevent legal access to certain natural molecules that do not present risks, and to plants that have been used for thousands of years by mankind. According to the WHO, the CBD does not seem to present any potential for abuse, nor to be harmful to health. There is an urgent need to harmonise European regulations to guarantee the safety of European consumers.”

The Court decision and press release are available in English (here and here) and in French (here and here).

Xavier Pizarro represented Sébastien Béguerie, former co-director of Kanavape, in the proceedings before the CJEU.

Allen & Overy is one of the first major law firms to have built a multidisciplinary and international team dedicated to cannabis market. This cross-disciplinary group, composed of some twenty lawyers from various Allen & Overy offices across the world, actively monitors regulatory developments relating to cannabinoid-based products, and studies both their impact on market developments, and the investment opportunities they create. The Allen & Overy team dedicated to the cannabinoid market assists key players in the cannabis industry by providing strategic and practical legal advice on regulatory and compliance matters, investments, M&A and strategic alliances, intellectual property, distribution, licensing, marketing and advertising, employment and criminal law.

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