Italy's hemp flower ban referred to European Court of Justice

The legal dispute that divides Italy over the hemp flowers and CBD comes at a crucial time, that France has also experienced.

The Italian Council of State referred the dispute to the Court of Justice of the European Union (CJEU), The referral raises the question of the conformity of national measures restricting hemp inflorescences with the European Union. The referral raises the question of the compliance of national measures restricting hemp inflorescences with the European Union law, particularly with regard to the free movement of agricultural products.

The case concerns safety decree and the ministerial decree Italy, which considers certified hemp flowers, leaves, oils and resins to be narcotics, even when their THC content is below the legal thresholds.

In referring the case back to Luxembourg, the Conseil d'Etat recognized that these rules could be in contradiction with European regulations, echoing the view of the European Court of Justice. to the precedent set by the Kanavape ruling, in which the CJEU ruled that CBD was not a narcotic and could not be blocked by member states if legally marketed elsewhere in the Union.

Legal and economic issues

This decision could have Europe-wide repercussions, by determining whether the Italian restrictive framework violates the principles of free movement of goods, of competition and proportionality under European law.

According to the lawyer Giacomo Bulleri, who is following the case, the CJEU ruling «is likely to have an effect throughout the EU, and is an important step towards harmonization in the sector». He adds that the ruling could lead to the suspension of current coercive measures, offering temporary respite to operators subject to criminal or administrative proceedings.

For industry players, the stakes are high. Visit Italy's hemp industry employs some 15,000 people and generates annual sales estimated at 500 million euros.

Mattia Cusani, president of Canapa Sativa Italia, The European Court of Justice (CJEU) will clarify whether targeting inflorescences alone is justified when European law makes no distinction between different parts of the plant and THC levels are minimal. «For companies and stores, this means a concrete prospect of legal certainty and supply chain protection,» he noted.

Years of regulatory turbulence

The referral to the CJEU concludes a decade of struggle marked by legislative reversals and legal challenges. In 2023, the Lazio Regional Administrative Tribunal (TAR) annulled certain parts of a ministerial decree which restricted hemp flowers and leaves, citing a lack of scientific justification. The Meloni government appealed, eventually prompting the Council of State to request a European ruling.

Italy has made several attempts to classify hemp as a medicinal plant, Restricting its cultivation and trade to seeds and fibers. These restrictions have led to confusion and legal disputes that have disrupted the sector's growth. Francesco Mirizzi, General Manager of’European Industrial Hemp Association (EIHA), noted that the industry «has paid the price in legal fees, product seizures and uncertainty», exacerbating the impact of inconsistent national policies.

At the heart of the referral to the CJEU are two questions: does the Italian safety decree breach the 2016 Italian Hemp Law by treating all hemp flowers as narcotics, and do these restrictions breach EU rules on agricultural products and market freedoms?

The Conseil d'Etat based its decision on the principle that European legislation «makes no distinction between different parts of the plant», suggesting that national bans on inflorescences could be incompatible with EU single market rules.

Mr. Mirizzi pointed out that while politics often delays the clarification of regulations, the CJEU ruling will eventually shape the interpretation of hemp law in all member states.

Towards legal certainty

With this referral, Italian operators and retailers are anticipating an historic decision that could finally harmonize national rules with EU standards.

The CJEU's decision will determine whether the flowers, the leaves, hemp oils and resins with a THC content of less than 0.3% are legal throughout the EU, putting an end to years of legal uncertainty.

As Bulleri points out, «the final battle for the hemp sector is on the horizon», marking a pivotal moment for one of Europe's most controversial agricultural industries.