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25 June 2021

The French supreme court validates the detention and marketing of CBD flowers

This long-awaited decision of the Court of Cassation (French Supreme Court) has not disappointed the actors of the hemp industry and the whole new economy of cannabidiol (CBD). This ruling of June 23, 2021 which will now be a landmark, purely and simply challenges the current (and future!) French regulations concerning the marketing of CBD flower.

In this case, a retailer in Grenoble was prosecuted for the marketing of CBD-based products (including flowers) but containing traces of THC. After the release of the retailer by the Grenoble criminal court on June 3, 2019, the Court of Appeal of the same jurisdiction had found the plaintiff guilty of complicity in drug offenses in a decision dated June 22, 2020.

The Court of Appeal of Grenoble legitimately justified its decision by a classic reading of the French regulation (“arrêté”) of August 22, 1990, which states in Article 1 that are only authorized the cultivation, import, export and industrial and commercial use (fibers and seeds only) of varieties of cannabis sativa L. with a delta-9-THC content of no more than 0.20 %.

Following an appeal by the retailer, the Court of Cassation partially overturned this decision on the basis that the judges of appeal did not inquire, although they were invited to do so, whether “the substances seized had not been legally produced in another Member State of the European Union“.

By this statement, the Court of Cassation clearly engages in the path opened by the Kanavape decision[1] of the Court of Justice of the European Union[2], which in November 2020 decided that according to Articles 34 and 36 of the Treaty on the Functioning of the European Union a Member State (France in the given case) could not prohibit the marketing of CBD legally produced in another Member State when it was extracted from the entire cannabis sativa plant and not only from its fibers and seeds, unless this regulation is appropriate to ensure the achievement of the objective of protecting public health and does not go beyond what is necessary to achieve it.

On 23 June 2021, the Court of Cassation crossed a new line. Where the Kanavape ruling only referred circumstantially to CBD products extracted from the whole hemp plant, the products taken into account in the decision of the Court of Cassation explicitly includes “flowering heads of cannabis, legally produced in another Member State and containing no psychotropic substance” (also commonly known as “CBD flowers”). By accentuating the scope of the Kanavape ruling, the Court of Cassation clearly legalizes the possession and marketing of CBD flowers, provided that they are legally produced in another EU member state.

In this respect, the Court of Cassation agrees with the position supported by French members of the parliament in their recent report on “hemp wellness”[3], which we analyzed in our article of April 12, 2021, and which provided in particular for the inclusion of CBD flowers in the regulatory field of “smoking products based on plants other than tobacco”.

This ruling is a real outrage to the French government which, last month, communicated via the AFP on its willingness to purely and simply ban the sale of CBD flowers in France, regardless of their origin. This communication had the effect of a cold shower on the hemp industry then boosted  with excellent growth perspectives by the Kanavape ruling.

It is therefore in this very particular context of those two converging rulings of the CJEU and the Court of Cassation that the text of the draft new French regulation prohibiting the marketing of CBD flowers is submitted for opinion to the European Commission. Let’s bet that the latter will not hesitate to put France face to face with its contradictions and ask it to review its draft by adopting a more open regime for the marketing of CBD flower.

The French government would be well advised to reread the rigorous work made in  report on “hemp wellness”, advocating a legal marketing regime specific to the flower, a control of the traceability of products and the means for these controls.

To be continued…

[1] CJEU, n° C-663/18, November 19, 2020

[2] Reviewed in our article of November 23, 2020

[3] Analyzed in our article of April 12, 2021