The European Commission rejects France's draft CBD decree

After its condemnation by the Court of Justice of the European Union At the time of the Kanavape decision, France presented the European Commission with its draft decree aimed at regulating the use of all parts of hemp.

As a reminder, if the draft order provided for to authorize industrial activities using all parts of the hemp plant, «the sale to consumers of raw flowers or leaves in any form, alone or mixed with other ingredients, in particular as smoking products, herbal teas or potpourri, their possession by consumers and their consumption» would be prohibited.

The draft order was open for contributions until October 21, 2021. Various players (NORML , Swiss Medical Cannabis, Union des Professionnels du CBD and Syndicat Professionnel du Chanvre) were able to submit contributions. On the member-state side, only Hungary submitted comments. These elements were used to shape the European Commission's opinion, delivered on Friday November 12.

What does the Commission say?

The Commission highlights several points on the draft French order on CBD:

• Presence of THC in finished products: the draft decree stipulates a maximum THC content of 0.2% in products derived from hemp. The Commission is asking for justification for this level, considering that the «acute reference dose» in food is 1 µg/kg body weight.
• Vagueness surrounding the term «hemp extracts» used in the project
• Novel Food regulations
• Overly broad coverage of the order, which could concern substances that are not narcotics

The Commission also points out that the French authorities must communicate the «definitive text adopted» to the Commission.

For Yann Bisiou, lecturer in private law and criminal sciences and a specialist in drug law, it's a «slap in the face for the government», which can «always confront the Commission», but must «completely rethink its draft decree».

«The Commission's opinion is not binding, and France can override it. But given the Commission's comments and the QPC case currently before the Conseil d'Etat, it would be suicidal,» continues Yann Bisiou.

For Benjamin Jeanroy, founder of Augur Associates, «feedback from the Commission and Hungary, the only member state to comment on the draft decree, is disappointing on several counts. Not only have the French industry representatives failed to mobilize the relevant ecosystems in other member countries to put pressure on their respective governments to comment on the issue of the sale of “flower”, but the French draft is now under attack for one of its key provisions: the THC content of the finished product».»

«In this case, the EC is using the EFSA study as a smokescreen, which is more than questionable when it comes to the subject at hand. The question of THC's supposed dangerousness has yet to be scientifically quantified. The NF question is less surprising, since it remains a political decision whether or not to apply the provisions of the catalog, which is not binding.»

«Technically, it's going to take a while. In the meantime, it's Kanavape and the Cassation rulings of June 15 and 23, 2021 which authorize the flower and are authentic,» confirms Yann Bisiou.

For the time being, therefore, France remains an import market for CBD raw flowers, and still does not authorize the cultivation of hemp flowers. And while customs seizures have recently resumed, mostly without restitution of the goods, the June 15, 2021 conservatory ruling and the Kanavape ruling may protect against these confiscatory measures.

«As the draft decree is already being contested by a number of forces within the government, the latter can only review its copy if it really wants to pass a regulatory text, thus implying new uncertainties for French players in the hemp wellness sector,» concludes Benjamin Jeanroy.