THE KanaVape ruling is in and it’s a massive win for the CBD industry with the ECJ saying that CBD is not a ‘narcotic drug’.
This is the wording from today’s ruling (see below for full press release): “The Court observes that the provisions on the free movement of goods within the European Union are applicable, since the CBD at issue in the main proceedings cannot be regarded as a ‘narcotic drug’.
Speaking to BusinessCann just a few minutes after the ruling from the European Court of Justice Antonin Cohen spoke of the ‘amazing victory’ after a six-year court battle costing Euros 200,000.
“We have not had very much positive news in Europe hemp and CBD industries over the last few years so I am very grateful for this ruling.”
The court ruling continued: In arriving at that conclusion, the Court first recalls that persons who market narcotic drugs cannot rely on the freedoms of movement…
The Court notes, next, that, to define the terms ‘drug’ or ‘narcotic drug’, EU law makes reference inter alia to two United Nations conventions: the Convention on Psychotropic Substances and the Single Convention on Narcotic Drugs.
CBD, however, is not mentioned in the former and, while it is true that a literal interpretation of the latter might lead to its being classified as a drug, in so far as it is a cannabis extract, such an interpretation would be contrary to the general spirit of that convention and to its objective of protecting ‘the health and welfare of mankind’.
The Court notes that, according to the current state of scientific knowledge, which it is necessary to take into account, unlike tetrahydrocannabinol (commonly called THC), another hemp cannabinoid, the CBD at issue does not appear to have any psychotropic effect or any harmful effect on human health.
For all the background to this case see here
Decision Welcomed By The industry
Matt Lawson and Steve Oliver, of The CannaConsultants, said: “We have always indicated that we believe that a literal and strict interpretation of the definitions within the 1961 Convention was against the spirit of that agreement, and undermined by the progress which has been made in cannabinoid understanding and technology in the almost 60 years since.
“We are pleased that Europe is now free of this restrictive and unjustified limitation on the advancement of the cannabinoid industry. In conjunction with our clients, we will now advance their Novel Food applications which have been on hold for a number of months.”
Senior UK cannabis lawyer Robert Jappie, a Partner at International law firm Ince, said: ”This is a big win for the CBD industry today. The ECJ confirms that although CBD, on a literal interpretation, could be considered a drug under the UN Single Convention, to do so would be “contrary to the general spirit of that convention and to its objective of protecting ‘the health and welfare of mankind”.
“This is a position put forward by EIHA recently and I expect they will be delighted. The court goes on to confirm that there is no evidence that CBD has any harmful effects on human health.
“Furthermore, the court identifies an inconsistency in the French approach in that synthetic CBD would be allowed. This means that the French could not argue that a prohibition on plant-derived CBD was necessary to protect public health.
“It’s definitely a good day for the industry as the court’s reasoning will make it very difficult for the EC to pursue any attempts to classify CBD as a narcotic.”
Siân Phillips, Managing Director of the Cannabis Trades Association said: “This has enormous relevance to the EU and with the UK ‘downloading’ these rulings this will have real impact. This ruling will be part of the UK post Brexit law and it opens up the market for trade in Cannabis plant extracts and potential CBD flower sales in the UK.”
What Is The KanaVape Case?
The case centres on a clash between the European Union’s single market rules – which allows for the freedom of movement of goods across its 27 member states – and French law, which permits the use of only the fibre and seeds the hemp plant.
In 2014, the French authorities launched a legal action against the makers of KanaVape, an e-cigarette using a CBD oil made from hemp flowers and leaves imported from the Czech Republic.
In January 2018, the businessmen behind KanaVape – Antonin Cohen and Sébastien Béguerie – were given a 16-month suspended sentence, and a Euro 10,000 fine, by Marseilles Criminal Court.
In October 2018, the Court of Appeal of Aix-en-Provence overturned this first instance verdict, as the ruling may not be compliant with the freedom of movement of goods of the European Union.
The Court of Appeal referred it to the ECJ to clarify this point. It subsequently appointed an Advocate General to provide an independent opinion the case.
These opinions are designed to offer impartial advice to the judges to help them reach their decision, and are not binding.
When making his advisory ruling in May, the appointed ECJ Advocate General Evgeni Tanchev, concluded that cannabidiol, or CBD, should not be considered a ‘narcotic’ drug.
Europe Views CBD As A Narcotic
The significance of the ECJ ruling has become even more important following the European Commission’s (EC) U-turn earlier this year
In January 2019, the EC said it considered CBD a Novel Food but in July this year it changed its mind and, in a ‘preliminary’ decision, said it now considered CBD a narcotic.
In doing so it said it was deferring to the classification of cannabis extracts under the international drug conventions and its established position that a food, cannot also be narcotic drug.
This resulted in a suspension of the Novel Food applications of the 50-or-so companies looking to secure authorisation to sell CBD products in the member states.
Will The ECJ Ruling Have Primacy?
Earlier this year BusinessCann asked the EC what would happen if the ECJ backs the AG. A spokesperson said: The European Commission is looking forward to the CJEU ruling in Case C 663/18 and will carefully assess the reasoning and conclusions it will reach.
“Similarly, the Commission will assess the possible impact of this ruling in respect of novel foods applications.”
When asked the same question by BusinessCann a press officer at the ECJ said: “ECJ’s rulings are final and have to be applied by any court throughout the EU.”
Last night senior UK cannabis lawyer Robert Jappie, a Partner at International law firm Ince said: “The decision could have multiple positive impacts on the European CBD market, not least persuading the EC to drop this ‘narcotic’ consideration.”
United Nations Drugs Conventions In The Mix
The United Nations Commission on Narcotic Drugs (CND) will meet in the next few weeks to consider the status of cannabis in international drug treaties.
The Word Health Organisation has recommend the CND reclassify cannabis and removes CBD, containing no more than 0.2% THC, from any international drug control conventions.
The AG referenced the 1961 treaty in his judgement, but if the ECJ opts to align with the existing UN position on the status of CBD this would see it likely overturn the advisory ruling.
However, if they align themselves with the WHO then this would herald a new era for the European hemp and CBD industries.
The CNBD had been due to meeting in March, but it was postponed until December and there is a possibility it may well be deferred into 2021.
