The Pot Company case: the French Supreme Court suspends its verdict pending a European court ruling

Among all business in progress involving hemp and CBD stores, one was more closely followed than the others, that of The Pot Company. And with good reason: it went so far as to refer the matter to the Cour de Cassation, the highest national court, which is responsible for verifying the legal conformity of jurisdictional decisions handed down by regional courts.

Its verdict could have set a precedent where other similar cases have divergent outcomes. But yesterday's verdict is a non-verdict. The Cour de Cassation refused to rule. Specifically, it «postponed ruling on the question of cannabidiol products» pending the outcome of the case. the verdict of the European Court of Justice in the Kanavape case.

The Pot Company case

One month after its opening in July 2018, this hemp store a Dijon-based company selling CBD products rather than hemp flowers, was visited by the police. In addition to a search of their stock and police custody, the two managers are placed under judicial supervision, a decision they are contesting on appeal. They won their case and in October 2018, the judicial controls were lifted following a decision by the Court of Appeal. This decision also allowed the store to reopen in November 2018. The store reopens in February 2019.

However, the case did not end there. It was taken all the way to the French Supreme Court (Cour de Cassation) following an appeal by the public prosecutor (avocat général), who contested the Court of Appeal's decision. Originally scheduled for April, the Court of Cassation's verdict has only just been announced, and has not brought the expected outcome. The Court seems to want to defer to European Justice on the CBD issue. This suggests, however, that the defense of European law is legitimate.

What the stay means

In this case, it's not so much the sale of CBD flowers that's at stake - in fact, it's the sale of CBD flowers that's at stake. The Pot Company was not selling it - but the very use of these flowers in the production of everyday consumer products. The entire French hemp industry is therefore at stake. A decision by the Cour de Cassation would have set a precedent. If it had considered The Pot Company As the Cour de Cassation is France's highest legal body, all other pending cases could have benefited from this decision.

However, the Cour de Cassation has refused to take responsibility for this case law. It prefers to await the decision of the European Court of Justice in the Kanavape case. The Commission is due to rule on the legality of the industrial and commercial use of hemp flowers under European law. The French government's interpretation European legislation on hemp excludes the use of flowers containing CBD, but European regulations on the subject do not specify which part of the plant may or may not be used, and authorize the presence of CBD from hemp flowers in cosmetics or food products. This is the point that the European Court will have to clarify.

The decisions of the European Court of Justice then apply to the whole of the European Union, so they have extremely far-reaching political implications. Given the subject sensitivity, It is possible that the latter will refuse to rule on the matter, and pass the ball back to the French courts. «By making the European judge settle an essentially French issue, we run the risk of disappointment. The European judge can perfectly well refer the matter back to the French judge... who will have to decide,» explains Yann Bisiou, a specialist in drug law.

Furthermore, even if the European Court of Justice considers that European law tolerates the use of flowers, national governments will still be able to legislate on the CBD molecule, for example in food products. under the regulations novel foods. Generally speaking, as long as Europe does not legislate directly on the issue, national governments can use a sleight of hand which consists of «authorizing the use of the flower» but prohibiting that of the molecule.

In France, it's more or less the other way around at the moment. French law does not clearly prohibit the use of flowers, leaving room for their use. The MILDECA nevertheless interprets the law in the sense that CBD is legal if it is not derived from hemp flowers and does not contain THC in the finished product. acquittal of Organiquement Vôtre.

To get around these problems, some retailers sell «ornamental» hemp flowers. Tactics to circumvent the problem exist in both camps and will remain so in the absence of clear regulation.