THE European Industrial Hemp Association (EIHA) has submitted its first Novel Food application in anticipation of a ruling in favour of CBD in the KanaVape court case.
Lorenza Romanese, Managing Director, of EIHA, told BusinessCann it believes that an imminent European Court of Justice (ECJ) ruling on the six-year-old French case will clear the way for CBD to be traded as a food in Europe.
This follows the European Commission’s U-Turn in July, when it said it no longer considers CBD as a food – rather, a narcotic drug – in a move which could shut down the thriving continental industry and impact millions of consumers.
She said:“We submitted an application for Novel Food authorisation for a CBD isolate on behalf of our members two weeks ago.
“We believe the ruling of the French Advocate General in the KanaVape case will be upheld by the European Court of Justice and this will allow for the free exchange of hemp-derived CBD products across Europe.
“In the hierarchy of European law-making, the ECJ has primacy over the European Commission and if it supports the ruling of the French judge, CBD will revert back to the status of a Novel Food in Europe.”
KanaVape Ruling: CBD ‘Not Narcotic’
The KanaVape case dates back to 2014 when French authorities outlawed the sale of a CBD vaping product, containing leaves and flowers imported from the Czech Republic, as those parts of the plant cannot be used in France.
Later, an Appeal Court asked for a ruling from the ECJ, and, in a non-binding opinion issued in June, French Advocate General Evgeni Tanchev said cannabidiol, or CBD, isn’t a ‘narcotic’ drug.
As such, CBD oil products made from the whole hemp plant can be traded freely across the member states of the European Union under the existing Freedom of Movement of Goods rules.
Advocate General Tanchev went on to say that if a national court found there were risks associated with CBD they should look to impose less restrictive measures than blocking the free movement of goods, ‘such as the establishment of a maximum CBD content’.
The advice of the lower court is put aside by the ECJ very rarely, says the EIHA and many senior lawyers.
Hemp Groups Launch Fightback
However, Ms Romanese does foresee an issue if the ECJ rejects the lower court’s ruling and the European Commission maintains its preliminary diktat of CBD as a narcotic.
To this end, it has secured support of a 13 national and regional hemp associations including the Australian Hemp Council, the Asia-pacific CBD Union and the Latin American Hemp Association.
They say that hemp and hemp-derived products have been widely used across Europe for decades and fall outwith any restrictions on high-THC cannabis in international drug treaties.
This kickback against the EC narcotic stance is now widespread with support from French and German associations and MEPs across the political spectrum.
Notice of the EC changing stance on CBD first emerged in July is a series of letters to applicants for a Novel Food authorisation in which it asked for representations on its shifting view.
Applicants were given two months to submit representations and with some not receiving the letters until the end of July it is unlikely the EC will have formalised its preliminary position before the end of October. The KanaVape case ruling is expected within weeks.
International Drug Conventions
However, the KanaVape case will not resolve the issue in relation to the status of CBD under international drug conventions.
The EC may well choose to continue to cleave to the restrictions on cannabis extracts, as outlined in these drug conventions, although there is some hope these will be relaxed later this year.
A spokesperson for the EC said: “The European Commission is looking forward to the CJEU (European Court of Justice) 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.”
In a recent press statement the EIHA said that over the next two to three years it would need to raise around €3.5m to proceed with four Novel Food applications.
