For years, CBD has been bearing the brunt of a campaign waged by French authorities against the legalization of cannabis. It is important to note thatCBD is not a narcoticand that its use is permitted throughout the European Union.
And yet, on December 31 of last year, the government proved once again that it would remain opposed to a modernist policy open to the new perspectives and opportunities offered by CBD in all its forms.
CBD Ban: What Consequences Can We Expect?
On December 31 of last year, the government stood by its position and, once again, disregarded European regulations by banning the sale and consumption of raw CBD flowers and leaves.
Our rights to conduct business and to own property are therefore being violated, and one might wonder whether this isn’t clearly a political issue, with the next presidential election just five months away. This is all the more true given that the government chose to issue this decree on December 31, which makes it difficult to pursue legal remedies and forces many business owners to close their doors overnight.
Didn't the government have anything better to do than to encroach on the Constitutional Council's jurisdiction—especially since the Council was already tasked with ruling on this matter, and with the verdict just a week away?
CBD flowers are primarily used as part of cannabis withdrawal. Without legal means to obtain them, these users will turn to the black market to buy illicit products, putting their health at risk.
Scientific studies (University College London, 2013) have also demonstrated the benefits of CBD in nicotine withdrawal.
Today, the government cannot ignore the scientific evidence and the potential impact this decision may have on the well-being of many citizens.
Instead of supporting a legal market backed by Europe, the government therefore prefers to open the door to an illicit and unsafe market.
We will not, therefore, allow this new decree to trample on our rights, and—as we have been preparing for weeks—we will fight this decision in order to ensure that the interests of our customers and all stakeholders in the CBD market are recognized, and to assert our rights.
High Society is therefore joining forces with the UPCBD to denounce this abusive and unjustified policy.
Appeals may be filed through:
- An emergency motion to defend the freedom to conduct business. This decision could be issued within 48 hours
- An action for annulment because the order has no legal basis and restricts business operations. The very basis of the order is not justified.
- Finally, a motion for a stay: Given all the data that has been submitted to the relevant agencies, we are requesting that the new order be suspended while the data is reviewed. We may receive a response to our request within 30 days.
Once again, the government is trying to force through regulations that defy common sense, showing utter disregard for the impact on market participants. It is deliberately turning a blind eye to the scientific evidence and all the benefits that have been highlighted after years of research.
What is the current regulatory situation regarding CBD?
This new decree is a baseless absurdity that preempts the Constitutional Council, which is scheduled to rule on the matter on January 7. By openly flouting the decision the judges might issue, the government seems to be forgetting that it is, in fact, up to the Constitutional Council to make the final ruling on the legality of CBD.
Furthermore, the government does not seem to care that it is undermining an entire thriving market with a promising future. As a result, thousands of stores will lose 70 or even 80 percent of their revenue, jeopardizing their very survival—all overnight.
Finally, he seems to be forgetting that the European Union has already ruled in favor of CBD and will not look favorably upon this ban, which runs counter to the modern and visionary direction Europe is taking.
Currently, two priority constitutionality questions (QPCs) are under review: one referred by the Council of State on October 8, 2021, concerning the classification of CBD as a legal substance, and the second, which was forwarded by the Court of Cassation to the Constitutional Council on November 24. To support these QPCs,High Society has joined forces with the Union of CBD Professionals (UPCBD).
The outcome of these two QPCs could prove decisive, in that a ruling of unconstitutionality would deprive the decree of August 22, 1990—as well as the new decree—of their legal basis.
These procedures provide another opportunity to convince the French government of the legitimacy of the flower trade. Today, it would undoubtedly be wise to heed the public’s demand for legal and regulated products.
The ban on CBD and cannabis continues, even as our European neighbors are in the process of legalizing them. France, rather than moving forward and opening up new opportunities, prefers to shut down an entire industry, thereby benefiting an illegal and unsafe market.
CBD, a wellness asset that has faced criticism since its arrival in France
It all began in 2018 with the arrival of cannabidiol, better known as CBD. The French government then asked the Interministerial Mission for the Fight Against Drugs and Addictive Behaviors (MILDECA) to issue a document with no legal standing, stating that hemp flowers are prohibited and that CBD products are permitted only if they contain 0% THC. However, this document has no legal standing.
Then, in a circular dated July 20, 2018, the Directorate of Criminal Affairs and Pardons (DACG) of the Ministry of Justice called for the crackdown on and prosecution of businesses that sell products containing CBD.
This was followed by a long period during which many stores were raided and there was an increase in harassment by law enforcement against anything related to CBD. As a result, many store managers and salespeople found themselves in police custody, treated as nothing more than common drug dealers. Their inventory was seized, and some even had their homes raided.
As a result, many honest business owners have found themselves facing legal action, though they have not been convicted, as the law regarding CBD is very vague. Moreover, there have been numerous postponements of court hearings, and the cases continue to drag on even today.
Following this period of persecution, there have been many positive developments that support the numerous benefits of CBD for our well-being.
It was the 2020 Kanavape ruling that marked the beginning of this new era: the Court of Justice of the European Union (CJEU) issued an opinion in response to the preliminary ruling request raised by the Court of Appeal of Aix-en-Provence, prompting the judge to dismiss the case.
In fact, the 1990 decree cited as the legal basis in the Kanavape case stipulated that the cultivation, import, export, and industrial and commercial use of hemp were authorized only if the following three cumulative criteria were met:
- The plant must be one of the Cannabis Sativa L. varieties listed in the ordinance
- Only the fibers and seeds may be used
- The plant's THC content must be less than 0.2%
In its November 19, 2020, ruling—known as the Kanavape case—the CJEU held thatCBD is not a narcotic, that it is covered by the principle of free movement, and that, consequently, the sale of products derived from the entire plant, legally cultivated within the EU, is permitted. In conclusion, any CBD-based product legally manufactured in one Member State may be marketed in any other Member State of the European Union.
She therefore concludes that the principle of the free movement of goods is not compatible with French regulations prohibiting the sale of CBD derived from the whole plant and legally produced in another country.
Finally, on July 20, 2021, the Government, through MILDECA, submitted to the European Commission a new draft decree amending the 1990 decree and providing for:
- To authorize industrial activities involving all parts of the hemp plant, and thus the extraction of cannabidiol from catalog varieties
- To prohibit “the sale to consumers of raw flowers or leaves in any form, whether alone or mixed with other ingredients—including as smoking products, herbal teas, or potpourri—as well as their possession by consumers and their consumption,” even if the product’s THC content is less than 0.2%
According to the government, this restriction is justified on grounds of public order, particularly the fight against drug trafficking. The government argues that it is impossible for law enforcement to distinguish a CBD flower from a real cannabis flower. However, there are now many solutions that could—and do—help law enforcement distinguish CBD from narcotics, without having to undermine an entire legal and thriving industry.
The protection of public health (the harmful effects of tobacco products) is cited as a secondary justification for this restriction. The European Commission was therefore asked to rule on whether this decree complies with European law.
On November 12, the European Commission issued an opinion containing several reservations and observations that necessitate a revision of the decree, particularly regarding the THC level and the lack of clarity regarding its application.
Numerous television reports—such as the “Envoyé Spécial” segment that aired on France 2 on December 16—reflect the public’s growing interest and underscore the benefits of this compound as well as the importance of regulating the commercialization of CBD.
It is high time for the government to end its prohibitive crackdown and take into account the latest scientific advances as well as the interests of its citizens.
