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French Ban on CBD Contradicts EU Law, Says European Court Advisor

May 21, 2020

French Ban on CBD Contradicts EU Law, Says European Court Advisor

Banning the import of hemp-derived cannabidiol (CBD) oil from European Union member states may contradict the EU law on the free movement of goods, according to an advisor to the Court of Justice of the European Union.

Writing in a nonbinding legal opinion on a French case involving the marketing of a CBD vape product imported from the Czech Republic, Advocate General Evgeni Tanchev has argues that CBD oil cannot be considered a controlled narcotic drug, and so therefore should be covered under the EU free movement of goods regulations. This would require France to overhaul their current restrictions on CBD import and production.

If the court decides to follow the advocate general’s opinion, it would set a binding precedent that would have a major impact on the European CBD industry, and could lead to further legal challenges in other EU member states with disproportionately tight CBD import restrictions.


French law and the case of Kanavape

France has some of the strictest cannabis and hemp usage laws within the EU, despite being the region’s largest producer of hemp material. In France, CBD products can only be made from the seeds and fibers of the hemp plant – not the flowers or the leaves – so products made with whole hemp plant extract are prohibited.

Against this backdrop, Sébastien Béguerie and Antonin Cohen launched Kanavape in 2014. Their CBD e-cigarette, made from CBD oil imported from the Czech Republic, caused uproar when it was marketed in France. The country’s health minister, Marisol Touraine, told RTL radio at the time that he was “opposed to such a product being commercialized in France,” and that he would be moving to ban the product.

Béguerie and Cohen were later convicted of a criminal offense by a Marseille court, on the basis that the CBD oil used in the Kanavape line was a whole plant hemp extract. They appealed their conviction, and now their case has been referred by the French appeals court to the Court of Justice of the European Union (CJEU).

The CJEU is the EU’s highest court, and while it isn’t bound by Advocate General Tanchev’s opinion, it tends to follow the lead of its advisors. A final ruling from the CJEU is expected in September.

The legal opinion alone is a large symbolic victory for the European CBD industry. Cohen has said that the duration of the proceedings and the referral to Europe’s highest court illustrates the need for a clearer framework for CBD production in Europe.


Deconstructing the legal opinion

In the legal opinion, the advocate general runs through the facts of the case and then boils it down to a central issue of deciding whether the French legislation restricting hemp imports from another EU member state is in contradiction to the EU laws concerning the free movement of goods.

The specific EU rules brought up in the case are the provisions of the FEU Treaty and some secondary agricultural policy rules, Regulations No 1307/2013 and No 1308/2013.

To these points, Tanchev believes that the secondary rules don’t apply to whole plant hemp extracts, but acknowledges if the court disagrees then there is nothing in these rules that would prevent EU member states from imposing restrictions on hemp oil, so long as the restrictions were “appropriate for ensuring the protection of human health and did not go beyond what is necessary to attain that objective.”

On the FEU Treaty, which includes the legal basis for the free movement of goods, Tanchev concludes that “CBD oil falls within the scope of Articles 34 and 36 [of the] TFEU.” Therefore, a member state like France cannot prohibit the free movement of CBD oils in from another member state.

“It is clear from case-law that, since the harmfulness of narcotic drugs is generally recognised, there is a prohibition in all the member states on marketing them, with the exception of strictly controlled trade for use for medical and scientific purposes,” Tanchev wrote.

“The CBD oil at issue in the present case is not marketed through channels strictly controlled by the competent authorities with a view to use for medical or scientific purposes. Therefore, if CBD oil were to be considered a narcotic drug it would fall outside the scope of Articles 34 and 36 TFEU.”

“In my view, that is not the case,” Tanchev concluded.


What next?

According to Tanchev, the French court now needs to take a position on whether it believes there to be any risk associated with the effects of CBD that have been identified.

If the court believes there to be risks, then it would be able to introduce an alternative restriction on whole plant-derived CBD products – one that is a measured response in accordance to that risk, such as a CBD content limit – but it cannot legally continue to have a blanket ban on the free movement of these products between EU member states.

Eveline Van Keymeulen, an attorney from the Paris-based firm Allen & Overy, who represented Cohen in the case, said that the legal opinion handed down from Tanchev represents “a crucial step towards much needed regulatory harmonization and legal certainty for the CBD industry in Europe.”

“It would not only require France to adapt its legislation in order to allow the marketing of CBD extracted from the entire hemp plant, but may also force other national regulators to (re)examine existing restrictions related to hemp-derived products in light of the free movement of goods in the EU,” Van Keymeulen wrote in a statement.

“A clear and proportionate regulation of CBD-based products will ultimately benefit EU consumers,” she added.

 

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