Has France legalized Δ⁹-tetrahydrocannabinol (THC)?

Renaud Colson, Professor of Law at the University of Nantes, has just thrown another stone into the pond. After having revealed that France could not limit the action of the European law on hemp, de facto legalizing the use and sale of CBD flowers or preventing any limitation below 0.2% of THC content, Renaud Colson advert in Libération that France has «legalized» Δ⁹-tetrahydrocannabinol, better known as THC, in 2007. Really?

Technical fault

On paper, the loophole does exist, but there are two conflicting texts: article R5132-86, which records the exception of Δ⁹-THC, and the’Decree of February 22, 1990 which lists substances classified as narcotics.

Until now, the general interpretation was that the pharmaceutical article R5132-86 was limited by the broader 1990 decree. Renaud Colson argues that article R5132-86 «necessarily prevails over the general ban on cannabis and its resin», and therefore over the aforementioned decree, in addition to having been passed after the 1990 decree, reinforcing the derogation character.

According to his reasoning, cannabis flower and resin are still prohibited. Only THC or THC + CBD cartridges, such as Pax Era / Cookies / Venom, would be «authorized». The latter allow consumption without combustion, with only the active ingredients of cannabis, and are now widely used in US states where cannabis is legal. But this would be to pre-empt the availability of cannabis in France.

And in real life?

Renaud Colson's demonstration just needs to be validated. He himself points out its limits, anticipating the reaction of the legal system to «adventurers ready to engage in a legal battle with an uncertain outcome». Even if this loophole were to be used in court, the spirit of the law would still be to ban the sale and consumption of THC. To which Renaud Colson replies: «It's hard to see how judges could sanction adventurous entrepreneurs who market the cannabis industry's most innovative products, and the buyers who use them.»

A reminder of the Kanavape trial. At the time, the courts were able to find grounds for punishing these «adventurous entrepreneurs», who ultimately opened up a multi-million euro business in France. Will we be entitled to a Kanavape II for THC?

The chances are slim, and it doesn't change much for the user. As Yann Bisiou, Senior Lecturer in Private Law and Criminal Sciences, reminds us, the French government always wants to add a 300 fine for simple use in addition to prison sentences, and still refuses access to medical cannabis for the sick.

today's challenge for #cannabis is to have simple, effective access to hemp-based medicines, and even to the cannabis plant, for patients who need them.

- yann bisiou (@yannbisiou) April 23, 2018

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While THC e-cigarettes are empirically unlikely to be sanctioned and will always be available online, the spirit of French law is not changed by this loophole.