In court documents released last week, Advocate General Evgeni Tanchev concluded that “[EU law] precludes a Member State from prohibiting the importation of cannabidiol oil from another Member State, where that oil is extracted from the whole hemp plant, and not solely from its fibre and seeds.
“In the current state of scientific knowledge, it has not been established that cannabidiol oil has psychotropic effects.”
The Advocate General also concluded that the French government could not identify any “potentially negative consequences for health,” and could only impose a ban if they found the risk existed after “a comprehensive scientific assessment.”
The comments represent the latest in a long-running legal saga that saw Antonin Cohen-Adad, ex-manager of now-defunct Kanavape, and Sébastien Béguerie prosecuted in January 2018 for selling products such as e-cigarettes that contained natural CBD.
French courts ruled that Cohen’s actions contravened the country’s CBD laws, considered some of the strictest within the EU. Here, marijuana is banned, and CBD can only use the plant’s seeds and fibres and not its flowers.
More importantly, this extract cannot contain the main psychoactive compound Tetrahydrocannabinol (THC).
Béguerie and Cohen-Adad were convicted of drug-related offences, by the Marseille Criminal Court receiving suspended prison sentences and a fine of €10,000.
In appealing the decision, the French Court of Appeal referred the matter to The Court of Justice of the European Union (CJEU) in Luxembourg, which were asked to rule whether CBD imports can be banned under the EU’s free movement of goods.
‘Lack of regulation clarity’
“The duration of these proceedings – more than five years – and the referral to the CJEU demonstrates the lack of clarity in the current regulations, and the need to provide a clear framework for the production and use of CBD in France and Europe,” said Cohen-Adad, Kanavape’s co-director.
“It is very difficult to combat these legal challenges for so long but I have pursued this approach because it is vital to create clear regulations to protect the health of consumers and to support the competitiveness of French and European companies in a global industry that is growing very fast.”
Further details disclosed in the court documents, revealed that the French government applied the precautionary principle in order to prohibit the importation of CBD oil.
According to case-law, where there is scientific uncertainty as regards the existence or scope of the real risks to public health, a Member State may, under the precautionary principle, ‘take protective measures without having to wait for the reality and the seriousness of those risks to be fully demonstrated.’
Lawyers representing Cohen-Adad in the CJEU proceedings, considered the possible impact of the Opinion, arguing that the French Government would have to remedy this non-compliance and bring the French provisions in line with EU law.
“This could be achieved by abolishing the present ban on hemp-derived CBD and replace it by less restrictive — more proportionate — measures,” said Eveline Van Keymeulen, head of Allen & Overy’s life sciences regulatory and cannabis practices.
“As suggested by the Advocate General, such measures could take the form of maximum concentrations or recommended daily dosages depending on the type of CBD product, which would permit a tailored and risk-based approach.”
‘Ruling serves as “precedent”’
Commenting on what this ruling mean towards harmonisation of regulations in Europe, Van Keymeulen said that the CJEU’s preliminary ruling constitutes a ‘binding interpretation of EU law for EU Member States and EU institutions even if they were not directly involved in the specific preliminary ruling.’
“It will serve as a so-called “precedent” in subsequent cases that are brought before national and/or EU courts,” she added.
“The outcome of this case is thus not only binding on the referring French Court but also on the courts in other EU Member States.”
Van Keymeulen commented that the CJEU’s decision may encourage – or force – other national regulators to (re)examine existing restrictions related to hemp-derived products,
Equally, it may provide room for the industry to challenge overly restrictive and arbitrary regulations in light of the free movement of goods in the EU.
The court is expected to issue its ruling from September 2020 onwards.