The CBD.FR team wants to clarify the current legal situation regarding the resale of cannabidiol (CBD) products. The topic has been less trending lately in France.
But the summer of 2018 allowed some journalists, fond of “controversial subjects,” to indulge themselves.
Indeed, since 2017, you’ll find numerous press articles online citing the closure of CBD shops throughout France. Some are acquitted, others convicted of drug trafficking: welcome to the Wild West! The Wild West?! But we’re talking about France? Yes, we’re talking about our country, the world champion of political correctness. France, as usual, has created an improbable mess, something only it seems capable of in our world. But what can you do? We are French, proud to be so, and (let’s never forget) incredibly lucky to have been born here! And yes, we are fortunate to live in a state governed by the rule of law, which protects every citizen’s fundamental rights. We simply wanted, with all humility, to remind all those who criticize our state of this basic principle.
So why is it the Wild West here?
Because our beloved France is capable of both the best and the worst!
The worst is the prohibition of cannabis, maintained and reinforced for decades, encompassing all forms of cannabis: recreational, medicinal/therapeutic, and even edible use.
The best is that France is the 3rd largest producer of hemp in the world (behind China and Canada) and the leading producer in Europe. A paradox, you might say!
French legislation on cannabis:France has a significant legal arsenal (Articles 222-37 and 222-36 of the Penal Code) to combat the resale and consumption of drugs, and that’s a good thing! These articles of the Penal Code notably encompass the offense related to drug trafficking.Furthermore, in order to limit “provocations” aimed at promoting cannabis, it is necessary to refer to
Article 3421-4 of the Public Health Code.
However, this article has limitations regarding freedom of expression (for example, works of artistic creation are generally not subject to this provision).French legislation on CBD:
In addition to the Penal Code, which punishes all types of trafficking or consumption of illicit substances, Francehas its Public Health Code.
In this case, and as far as we are concerned in
this article on CBD, also known as Cannabidiol, it is necessary to refer to the decree of August 22, 1990, implementing Article R. 5132-86 of the Public Health Code for cannabis.
Article 1 of this decree is clear, precise, and does not appear to suggest any legal loophole on this subject:“Article 1:
Amended by Decree of February 24, 2004, art. 1, Official Journal of March 21, 2004For the purposes of Article R. 5181 of the aforementioned code, the cultivation, import, export, and industrial and commercial use (fibers and seeds) of Cannabis sativa L. varieties meeting the following criteria are authorized:
– the delta-9-tetrahydrocannabinol content of these varieties does not exceed 0.20%;– the determination of the delta-9-tetrahydrocannabinol content and the taking of samples for this determination are carried out according to the Community method provided for in the annex.” Applications to include a hemp variety in the list of Cannabis sativa L. varieties appearing in Article 2 must be accompanied by a report indicating the results of analyses carried out in accordance with procedure B of the method described in the annex to this decree, as well as a descriptive sheet of the variety in question.
»
In short: this article clearly states “fibers and seeds”! Thus, our legislator had already taken care, back then, to exclude flowers from the scope of this legislation.
Article 2 adds nothing more except to list the authorized varieties from Article 1. That being said, it is essential for cbd.fr to ensure with its hemp suppliers and producers that their cultivation complies with the mandatory requirements of this list of authorized Cannabis Sativa L. varieties.To summarize:
In France, and with regard to the aforementioned article of the Public Health Code, it seems prohibited to
resell hemp flowers in France.
However, fibers and seeds can be sold provided that the authorized variety of the original plant does not exceed 0.2% THC. So why does CBD.FR sell flowers?Because the boss and his team dream of a stay in prison! Seriously!
Seriously! ✔Because
CBD.FR
knows the health and environmental benefits of hemp.✔Because
CBD.FRdoesn’t promote cannabis, but rather CBD hemp flowers for infusion or vaporization!
✔Becausecbd.fr in no way encourages cannabis consumption, but clearly promotes the use of CBD flower infusions, which, according to our customers’ feedback, seem to offer multiple benefits: relaxation, THC withdrawal, psychological benefits, physical benefits, pain relief, etc. This is not a scientifically established list, but rather a non-exhaustive list compiled based on our customer base.
✔BecauseCBD.FRloves hemp and has a deep-seated conviction that Nature can help us contribute to healthier attitudes while being responsible for the place where we live, the Earth.
✔ Then, because, in our opinion, EU law takes precedence over French legislation.
Huh?! What, EU law?
Yes, yes, EU law: this refers to the legislation in force within the Member States of the European Union.
EU legislation on CBD: So what does EU law say about the resale of CBD flowers?
Not much specific about the flowers themselves.
However, in Rome, on March 25, 1957, the Treaty establishing the European Community was signed. This Treaty obviously contains several articles, and we will focus here on Chapter 2 concerning the prohibition of quantitative restrictions between Member States, taken from Title I relating to the free movement of goods.
For those passionate about legal literature: select the link to the 2002 Consolidated Version, as amended by the Treaty of Nice.
So what do Articles 28, 29, and 30 of the TFEU stipulate? (TFEU = Treaty on the Functioning of the EU)
Article 28
Quantitative restrictions on imports, and all measures having equivalent effect, are prohibited between Member States.Article 29
Quantitative restrictions on exports, and all measures having equivalent effect, are prohibited between Member States.
Article 30
The provisions of Articles 28 and 29 do not preclude prohibitions or restrictions on imports, exports, or transit justified on grounds of public morality, public order, public security, the protection of human and animal life and health, the preservation of plants, the protection of national treasures possessing artistic, historical, or archaeological value, or the protection of industrial and commercial property. However, such prohibitions or restrictions must not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
Next, let us highlight Article 32 of Title II on agriculture, taken from Part 3 of the Treaty, concerning Community policies.Article 32
1. The common market shall extend to agriculture and trade in agricultural products. Agricultural products shall mean products of the soil, livestock, and fisheries, as well as primary processed products directly related to these products.2. Unless otherwise provided in Articles 33 to 38 inclusive, the rules laid down for the establishment of the common market shall apply to agricultural products.
3. The products which are subject to the provisions of Articles 33 to 38 inclusive are listed in Annex I to this Treaty.
4. The operation and development of the common market for agricultural products shall be accompanied by the establishment of a common agricultural policy.
Furthermore, reference should be made to REGULATION (EU) No 1307/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 December 2013 laying down rules for direct payments to farmers under support schemes within the framework of the common agricultural policy.
Then reference should be made to REGULATION (EU) No 1307/2013 of the European Parliament and of the Council of 17 December 2013 laying down rules for direct payments to farmers under support schemes within the framework of the common agricultural policy.
Regulation (EC) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 on the common organisation of the markets in agricultural products.Well, we can sense your legal passion here 😉
Indeed, we can tell we’ve lost you (or rather, overwhelmed you)
But faced with countless inaccurate facts on the internet regarding the regulation of CBD in France and Europe, you’ll agree that we need to be precise about the legal sources.
To summarize:To be clear, this Treaty, taking into account the different specificities of the Member States, aimed to harmonize regulations linked to the basic principle of the free movement of goods.
To form your own opinion on this French regulation, which differs from EU law, you now have all the relevant information and sources (see links) from which we derived these legal rules.
It is therefore based on these European regulations that CBD.FR allows French customers to confidently receive their CBD products, particularly for online purchases of CBD flowers.EU legislation versus French legislation?
Yes and no. In principle, EU law always takes precedence over the national legislation of member states, except where specific provisions exist.
Regarding CBD: no specific provisions are enacted.
This is to limit the legal tourism that plagues our country (it must be admitted that certain geographical areas in France are more conducive than others to CBD trading). Indeed, you have certainly seen in the press the announcements of the opening or closing of shops specializing in the resale of CBD products.
Some jurisdictions seem more lenient than others, particularly due to the potential non-compliance of French regulations with EU law.
Moreover, the French judges of the Aix-en-Provence Court of Appeal submitted a preliminary question to the CJEU on October 28, 2018. There is no doubt that the legal battle is not over… To be continued 😉 And the next episode will arrive when the CJEU has answered the question posed… likely expected by March 31, 2020!
That being said, to be definitively clear and precise regarding French legislation in relation to European regulations, it is important to specify and reiterate that Article 55 of our Constitution (see Title IV: International Treaties and Agreements) states that:
“Treaties or agreements duly ratified or approved shall, upon their publication, have an authority superior to that of laws, subject, for each agreement or treaty, to its application by the other party.”
What is the current state of legislation in France concerning hemp, cannabis, and CBD?
As previously mentioned, French magistrates appear to be awaiting clarification from the CJEU regarding the conformity of French legislation with European regulations.
