The Kanavape case judged by the CJEU: a victory for CBD producers in Europe

The CJEU, the Court of Justice of the European Union, has ruled that EU member states cannot prohibit the marketing of CBD legally produced by another member state. This applies particularly when the CBDis derived from the entire Cannabis sativa plant, and not just its fibers and seeds. This position clearly demonstrates that the CJEU does not consider cannabidiol to be a narcotic. That said, we invite you to take a closer look at this case in its entirety.

The summary

• Understanding the context of the case
• At the Court of Appeal of Aix-en-Provence
• The CJEU rules: CBD IS NOT A DRUG!
• The CJEU decision and the CBD industry

Understanding the context of the case

Indeed, discussing the CJEU's ruling on the case is all well and good. But being able to present the case itself and its stakeholders is even better. In fact, Catlab SAS, a company founded in 2014, is at the heart of this story. It is attempting to market CBD-based products in France, notably Kanavape (an electronic cigarette using CBD as liquid). The CBD in question reportedly comes from the Czech Republic and is extracted from the entire Cannabis Sativa plant.

So what's going on? TheANSM (FrenchNational Agency for Medicines and Health Products Safety) has reportedly found that the products in question fall within acceptable limits regarding their THC. Similarly, it has reportedly observed variations in their CBD content.

Subsequently, the ANSM (French National Agency for Medicines and Health Products Safety) reportedly stated that, in its view, Kanavape is not a medicine. As a result, the former executives of Catlab were allegedly prosecuted for violations of French law and non-compliance with regulations governing the sale of toxic substances.

In the same vein, the French Ministry of Justice reportedly published a statement on July 23, 2018, stipulating that CBD can only be legally marketed in France if and only if:

• it comes from the fiber and seeds of one of the varieties of Cannabis Sativa L;
• the underlying hemp plant is an approved low-THC variety (no more than 0.2% THC).

From this perspective, the same Ministry reportedly added that CBD is very often concentrated in the leaves and flowers of the plant, and not in the fiber and seeds. Therefore, most of the CBD was probably produced illegally, contrary to the French Public Health Code, which requires that only cannabis fibers and seeds be used.

This is how this case begins; which ends up in the Court of Appeal of Aix-en-Provence.

At the Court of Appeal of Aix-en-Provence

Indeed, following these accusations, Catlab's management reportedly appealed. According to them, the French ban on the sale of CBD derived from the Cannabis sativa was contrary to EU law.

This position was taken into account by the Court of Appeal of Aix-en-Provence. The Court, in its examination of the case, reportedly considered the following points:

• CBD does not appear to have any “recognized psychoactive effects”;
• CBD was not specifically listed in the Single Convention on Narcotic Drugs of 1961;
• On June 25, 2015, the ANSM concluded that there was insufficient data to classify CBD as “harmful”.

The Court of Appeal of Aix-en-Provence would therefore have asked whether: provisions of the public health code (prohibiting the use of hemp leaves and flowers) and European Union law are incompatible?

That is how the question was referred to the CJEU.

The CJEU rules: CBD IS NOT A DRUG!

Once the case reached the CJEU, the Court reportedly issued a clarification right from the start. What was it? Those who trade in narcotics cannot invoke the principles of free movement within the EU. Therefore, it was indeed important for the CJEU to rule on the status of CBD: is it a narcotic or not?

In the process, it emerged that a literal interpretation of the Single Convention could lead to CBD being considered a narcotic. Why? Because it is extracted from the cannabis plant, which, in its entirety, is considered a narcotic.

However, the CJEU reportedly clarified that CBD, in this case, could not be considered a narcotic within the meaning of the Single Convention. Following this logic, the following factors reportedly contributed to the emergence of this viewpoint:

1. The definition of "cannabis" within the meaning of the Single Convention is linked to the harm that cannabis-derived products can cause; however, according to the French authorities' own evidence, it could not be clearly demonstrated that CBD caused such harm;
2. If it were accepted that the scientific position was that CBD does not contain any psychoactive ingredient, it would be contrary to the objective and general spirit of the Single Convention to include it in the definition of "drugs" within the meaning of that convention as an extract of cannabis;
3. The CBD in this case was legally produced in the Czech Republic.

The objective of the French regulator being to protect human health, the CJEU would have considered that this ban was unjustified; since it is not scientifically proven that CBD is harmful to health.

The CJEU decision and the CBD industry

Indeed, this case has had the merit of reviving this heated debate on the following issues:

• Is it legal to sell CBD from another EU member state in France?
• Is CBD itself good or bad for human health?
• How should CBD truly be extracted from the Cannabis Sativa L plant?

With theKanavape case, you now have precise answers from an influential authority. In this context, you can understand why CBD.FR legally sells CBD products from other EU countries.

This article was exclusively inspired by the one written by DLA PIPER.

Also read: CBD, legislation, France and the EU: a major controversy!