The Council of State has overturned the decree of December 30, 2021, prohibiting the sale of cannabis flowers and leaves with a THC (tetrahydrocannabinol) content of less than 0.3%. It notes that CBD (cannabidiol), which has no psychotropic effects and does not cause addiction, cannot be considered a narcotic. It maintains that it has not been established that consuming the flowers and leaves of these low-THC cannabis varieties poses risks to public health. Consequently, it deems the general and absolute ban on their sale illegal. See the Council of State’s decision See the Council of State’s decision
Seized as a matter of urgency at the beginning of 2022, the judge of the summary proceedings division of the Council of State suspended the execution of this ban by an order dated January 24, 2022. The Council of State is now ruling on the merits and deems the general and absolute ban on the marketing of raw cannabis leaves and flowers with low THC content—that is, without intoxicating properties—disproportionate. It therefore annuls this ban established by the decree of December 30, 2021.
CBD has no psychotropic effect and does not cause addiction.
The investigation conducted on the merits by the Council of State established that the CBD and THC content varies considerably between different cannabis varieties. These two substances, CBD and THC, are the main plant cannabinoids primarily concentrated in cannabis flowers and leaves, but their effects are very different. The scientific data presented by the parties showed that CBD has relaxing and calming properties and anticonvulsant effects, but unlike THC, it has no psychotropic effects and does not cause addiction. Therefore, there are varieties of cannabis, those with low THC levels, that cannot be considered narcotics.
CBD does not pose a risk to public health justifying a general and absolute ban.
Assessing the legality of the ban order, the Council of State first reiterates that such a prohibition must be justified in light of the public health objective pursued and proportionate to the health risks posed by the substances thus regulated.
He maintains that health risks depend on the amount of THC actually ingested, based on the products consumed and the methods of consumption. He judges, according to the current scientific data, that the harmfulness of other molecules present in cannabis flowers and leaves, particularly CBD, has not been established.
He concludes from the scientific evidence produced during the investigation that the consumption of leaves and flowers of cannabis varieties with a THC content of less than 0.3% does not create risks to public health justifying a general and absolute ban on their sale.
Tests allow for the differentiation of cannabis varieties.
Furthermore, to justify the ban on their sale, the Minister of Solidarity and Health argued before the Council of State that the circulation of flowers and leaves of cannabis varieties without narcotic properties, due to their resemblance to flowers and leaves from varieties of this plant with narcotic properties, would compromise the effectiveness of the policy to combat narcotics. However, the Council of State noted that the THC content of the flowers and leaves could be controlled using rapid and inexpensive tests to identify varieties with psychoactive properties. The Council of State therefore considers that the effectiveness of the anti-narcotics policy cannot justify prohibiting the sale, in its raw state, of cannabis flowers and leaves with a THC content below 0.3%.
