TODAY could be a significant one in the history of Europe’s CBD industry with the European Court of Justice set to announce its decision on the controversial six-year old KanaVape case.
In May, an advisor to the ECJ Advocate General Evgeni Tanchev, concluded that CBD is not a narcotic drug.
If the five ECJ judges, sitting at Europe’s most senior court in Luxembourg, support this view of CBD (cannabidiol) as a food supplement, not a drug, it could help free the booming European CBD industry from its current regulatory limbo.
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.
France permits the use of only the fibre and seeds of the hemp plant in a move its says is designed to protect human health, due to the presence of psychotropic THC in the flowers.
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 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 for clarity.
Europe Now 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 is being challenged see here.
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.
Earlier Comments From Two Leading KanaVape Actors
Speaking To BusinessCann following May’s ruling Mr Cohen, CEO of European CBD company Harmony, said: “It’s been a long journey, and this is a good step in the right direction. A lot of hard work has been undertaken and this is now beginning to pay off.
“It’s a positive sign, and very exciting. It allows us to move on with positivity for CBD in Europe.”
Eveline Van Keymeulen, Head of Life Science and Cannabis Regulation Practices at Allen & Overy, representing the Mr Cohen and his associate, said if adopted by the ECJ it would constitute binding case law.
In a press release she said: “This will require France to change its legislation in order to authorize the marketing of CBD extracted from the whole hemp plant, and could also compel other national authorities to reexamine existing restrictions on hemp products, in the light of the principle of free movement of goods in the European Union.”
She added: “The Advocate General’s conclusions constitute a crucial step towards regulatory harmonization and legal certainty which are essential for the CBD industry in Europe.”
