State of the law on CBD in France: 3 expert opinions

The French Interministerial Mission for the Fight against Drugs and Addictive Behavior (MILDECA) recently published a report on the state of the drug problem in France. French law on CBD. In the absence of any real regulation, the CBD industry navigates between French and European legislation, lawsuits and case law to find out what it can and cannot do. And not everyone agrees on the real state of the law. We asked 3 experts to shed light on two points raised by MILDECA the need for 0 traces of THC and the sale of CBD flowers.

Yann Bisiou, Senior Lecturer in Private Law and Criminal Sciences, specialist in drug law

I disagree with the MILDECA on the 0 THC requirement. On legal varieties and their by-products, banning THC would close the entire legal hemp market, and the Court of Justice of the European Union (CJEU) prohibits this (2003 Hammarsten ruling).

European law has little effect on the problem posed by the French situation. Indeed, since the reform of the CAP (EU regulation no. 1308/2013 of December 17, 2013), the «flax and hemp sector» now concerns only the cultivation and import of hemp fibers. Seeds now fall into another category («other products») for which imports are regulated, notably to prevent the development of varieties with excessively high THC levels.

The only real obligation on States is that they cannot oppose the development of a common policy. In its 2003 Hammarsten ruling, the CJEU stated that national legislation could not prevent the cultivation and possession of industrial hemp.

There is therefore nothing to prevent France from restricting the marketing of hemp products, even from legal varieties, as long as cultivation and importation are possible. On the other hand, cannabidiol (CBD), which is not a narcotic, is not subject to these constraints, and from my point of view is therefore legal to market. On the other hand, the government is free to organize it in application of article R5132-87 of the Public Health Code.

Ingrid Metton, lawyer

There's a glaring contradiction between the possibility of growing hemp at a rate lower than 0.2%, and the possibility of marketing CBD, which is necessarily derived from hemp plants whose rate may be lower than 0.2%.

In fact, the MILDECA memo bears out this contradiction, stating that :

• «Therefore, any product containing cannabidiol extracted from the cannabis plant is prohibited unless it falls within the scope of the exemption mentioned below.»
• «This derogation to the principle of prohibition exists to allow hemp to be used for industrial and commercial purposes.»
• «Thus, certain varieties of cannabis or hemp, devoid of narcotic properties, may be used for industrial and commercial purposes under three cumulative conditions (catalog variety, seeds and fibres, THC content)».»

In my view, this rule would only apply to derivatives produced in France. To prohibit the sale of products manufactured in another European country where the use of the plant is legal would undermine the common market.

I also disagree on the following point: the ban on hemp flower.

The Treaty on the Functioning of the EU establishes the principle of the free movement of goods (articles 34 to 37), including agricultural and primary processing products (article 38) listed in Annex 1 of the treaty. Appendix 1 Chapter 57 covers «hemp (Cannabis Sativa), raw, rusted, dyed, combed or otherwise processed, but not spun; tow and waste (including garnetted)».

European law places no restrictions on the part of the plant that can be produced and marketed. The only possible restriction imposed by member states is that relating to risks to human health. Since the flower is raw, it must be considered an agricultural product.

The 2003 Hammarsten ruling by the CJEU then established the following principle:

• «However, it is clear from the first two recitals in the preamble to regulation no. 1430/82 that the risks to human health involved in the use of narcotics have been specifically taken into account within the framework of the common organization of the market in hemp«.« 
• «Firstly, the prohibition under Swedish narcotics legislation on the cultivation and possession of industrial hemp covered by the common organization of the market in hemp directly undermines that common organization.« 

Thus, according to the CJEU, the risks to human health have been sufficiently taken into account by European standards relating to hemp, prohibiting any more restrictive standards on the part of States.

The ruling does indeed refer to industrial hemp. But the European regulation 1308/2013 deals with the regulations governing the «common organization of agricultural products», with no further details. The flower, as an unprocessed agricultural product, must be allowed to be marketed if its THC content is less than 0.2% and if it belongs to a variety authorized in France.

If it were to be excluded from the scope of common market rules, only the CJEU would have the power to do so. France alone cannot decide to set limits on the common market.

Sylvie Massart, Laboratory assistant specializing in genetic engineering and the pharmaceutical industry

From a legal standpoint, the EC 1782/2003, which has since been repealed but whose content has been retained. in its latest version, regulates the cultivation of hemp in the European Union and is binding on France, as recalled by a European Court ruling (C-207/08) citing: «The national court responsible for applying, within the scope of its jurisdiction, the norms of Community law has the obligation to ensure the full effect of these norms by, if necessary, leaving unapplied, on its own authority, any contrary provision of national legislation».

On the basis of this ruling, the cultivation and possession of hemp for fibre production cannot be prohibited. There is no mention of restrictions on flowers or leaves. The only restriction is on the level of delta-9-tetrahydrocannabinol, which must be less than 0.2% measured in relation to the weight of dry matter. There are no restrictions on
products derived from hemp.

The WHO also reminds us in its critical review on CBD that CBD is in no way listed by UN conventions and that there is no recommendation to do so since CBD has no abuse potential. That there is an unsanctioned use of CBD extracted from CBD-dominant plants (i.e. hemp), and that no one can boast of its medical properties.

As for cannabis (THC-dominant), it is currently listed in Schedule 1 as well as its derivatives, except for medical use. A pre-review of Cannabis, delta-9-THC, its isomers and derivatives is currently underway and should be available very soon. These recommendations will be presented to the UN.

CBD is not a tetrahydrocannabinol, but rather a tetrahydrocannabinol antagonist. It acts by what is known as retrocontrol, compensating for the effect of THC. The Sativex has a 1:1 ratio, i.e. the same THC and CBD content, which counteracts its psychoactive effects.

The World Anti-Doping Agency has also removed CBD from its list of doping products in December 2017, and athletes are increasingly using it as a training recovery tool.
and muscle pain relief.

If we follow MILDECA's recommendations, where will we find the CBD they don't prohibit?

• In the hemp stalk: used for fibers (paper, building insulation, etc.).
• In the seed: it contains very little, and is more likely to contain Omega-3 and 6 acids.
• In another country
• Synthetically produced, while naturally found in hemp

The MILDECA project is legally and scientifically flawed.