For many years, interest in cannabis has been growing steadily. The consumption of these plants is strictly prohibited because they contain narcotic substances. However, numerous studies have been conducted, revealing the various properties of CBD, one of the two main substances found in cannabis. Authorities are now leaning towards regulation rather than strict prohibition. In UK in particular, numerous laws have been passed to define the limits concerning CBD-based products. So what is the French legislation on CBD in 2022?
What is the legislation on CBD prior to the decree of December 30, 2021?
Previously, French law was regulated by the decree of August 22, 1990. This decree made the cultivation of hemp subject to three cumulative criteria, namely:
- The plants must come from the list of Cannabis sativa L. varieties. This includes those authorized by the European Union.
- The use of plants must be limited to seeds and fibers;
- The THC content of the plants to be harvested must be below 0.2%.
In 2018 (specifically on July 23), a circular was issued by the Ministry of Justice. According to this provision, plants containing no more than 0.20% THC are completely legal. More specifically, the rate applies only to the plant and not to finished products. However, products derived from Sativa L plants must have a THC content of 0%, regardless of the purpose of these plants.
This provision was introduced by the European Union regulation of December 17, 2013 (Regulation 1308/2013). According to the provisions of this law, in order to produce, market, and import hemp for industrial purposes, the following conditions must be met:
- The plant comes from a variety of Cannabis Sativa L authorized by the European Union Commission;
- The THC content does not exceed 0.20%.
Unlike French law, European regulations do not impose restrictions on which parts of the plant can be used. These include those that are useful in cultivation. Similarly, there are no restrictions on their use. The main problem in UK that the CBD molecule must be extracted from the hemp flower. It must therefore be concluded that the marketing of finished products containing natural CBD is strictly prohibited, as this cannabidiol contains traces of THC.
The strictness of French regulations has been sanctioned by the European Court of Justice. This was done by the CJEU's "Kanavape" ruling (named after the French brand specializing in the sale of CBD vaping cartridges). In this ruling, the Court of Justice of the European Union specified that cannabidiol contained in hemp cannot be classified as a narcotic. This is possible because this molecule does not cause psychoactive effects on the consumer's mind, unlike THC-based products. Consequently, the European Court of Justice has authorized the marketing of cannabidiol-based products in all European regions.
This decision by the Court of Justice of the European Union led to the adoption in May 2021 of a parliamentary report that was very favorable to the use of natural cannabidiol. However, professionals must take all necessary measures to ensure that plants and derived products do not exceed a THC content of 0.2%.
Continuing in the same vein, a decision was mentioned by the French Court of Cassation on July 23, 2021. Thanks to this decision, the marketing of CBD-based products is not prohibited, regardless of the nature of the products offered for sale. These may include oils, flowers for smoking, or other products derived from cannabidiol. However, the Court of Cassation specified that restrictions may be put in place by the administrative authorities. Nevertheless, these must relate to public order or public health.
It must therefore be concluded that the French legal framework was open and allowed various specialist shops to sell CBD-based products to consumers. These products included cosmetics, oils, and flowers for smoking.
What changes were introduced by the decree of December 30, 2021?
First and foremost, you should know that the decree of December 30, 2021 repealed that of August 22, 1990. This decree made a number of changes to the legal framework that had been in place until then. Specifically aimed at entrepreneurs in the sector, the decree of December 30, 2021 completely redefines the scope of authorizations and prohibitions concerning the production and marketing of cannabidiol.
Thanks to the decree of December 30, 2021, entrepreneurs in the sector may cultivate, import, export, and use for industrial and commercial purposes only varieties of Cannabis sativa L. However, the THC content must not exceed 0.3%. Similarly, the plants to be used must be listed in the common catalog of varieties of agricultural plant species. Likewise, the authorization has been extended to include those listed in the official catalog of species and varieties of plants cultivated in UK.
Consequently, it must be concluded that all varieties containing less than 0.3% THC are considered non-narcotic products under the law. The cultivation and sale of these varieties is therefore legal. However, it is important to note that the cultivation of Cannabis sativa L. plants may only be carried out by active farmers as defined by European and national regulations. Similarly, the practice of cuttings and the sale of plants remain strictly prohibited. Hemp flowers and leaves may be used in industrial production to create derivative products. These include products that are intended for sale to consumers.
The main change introduced by the decree of December 30, 2021 is as follows: "raw hemp leaves and flowers in all their forms, alone or mixed with other ingredients, may not be sold to consumers for the purpose of being infused or smoked."
This decree also specified that individuals are not allowed to possess raw hemp leaves and flowers or consume them. To justify this measure, government authorities cited a fairly sufficient reason. Indeed, it is particularly difficult for security forces to distinguish cannabidiol flowers from THC flowers. However, there are now easy solutions that make it possible to distinguish between legal and illegal hemp. Law enforcement agencies in some European cities are already using the latest technology to detect traces of THC. This calls into question the state's argument regarding the possession of raw hemp leaves and flowers.
Furthermore, you should be aware that the decree of December 30, 2021 also mentions the ban imposed on retailers. Indeed, retailers are not allowed to make misleading advertisements about the properties of CBD. Similarly, the decree of December 30, 2021 formally prohibits retailers from advertising the recreational effects of cannabidiol. This provision was introduced to stop the confusion with THC-based products. This ban specifically concerns psychoactive cannabis substances and remains firmly established in French regions.
What are the consequences of the new provisions for CBD entrepreneurs?
The new provisions introduced by the decree of December 30, 2021 have significant consequences for CBD entrepreneurs. These include farmers and retailers specializing in hemp products. Indeed, the sale of CBD flowers is considered to be the main source of revenue for specialty stores.
Following the passing of the new law prohibiting the sale of flowers to consumers, retailers and farmers have seen a significant drop in profitability. In addition, substantial changes to French CBD regulations have impacted all young businesses that have entered this sector. According to analyses carried out by experts, several closures and layoffs have been recorded in certain stores.
Apart from the concerns of CBD entrepreneurs, there is also a certain lack of understanding among other European countries. Indeed, the latter tend to be increasingly open to legislation on cannabis in all its forms. However, some entrepreneurs and manufacturers see the decree of December 30, 2021, as a unique opportunity for the French hemp market, as it has led to the legalization of cannabidiol. Recently, the French government has already taken a stand by affirming its ambition to give hemp producers more flexibility.
However, the decree of December 30, 2021 has caused a great deal of tension and raised many questions. Several appeals have been lodged by producers. These include an application for suspension before the Council of State. In general, the appeals seek to obtain an urgent suspension of the provisions put in place by this decree. This is because this regulation could seriously harm the economic health of cannabidiol entrepreneurs.
Shortly thereafter, the Constitutional Council questioned the decision made by the Court of Justice of the European Union. Indeed, each judicial institution stated that CBD products should not be considered narcotic substances. Consequently, the Constitutional Council will therefore be required to rule specifically on the regulations in force.
What are the new regulations concerning CBD in 2022 in French regions?
Until January 2022, the consumption of CBD in the form of flowers is particularly illegal in French regions. However, a decision by the Council of State has recently been made. This decision suspended the ban on the sale of cannabis leaves and flowers. The suspension of Article R 5132-86 of the Public Health Code came into effect on January 24, 2022. However, it is important to note that not all products are legal in UK. This new CBD law authorizes all products with a THC content of less than 0.3%. CBD entrepreneurs must now comply with these new regulations.
Could the new CBD law of 2022 change in 2023?
As mentioned above, the Council of State recently decided to suspend the decree of December 31, 2021. This decree prohibited the use of CBD leaves and flowers, regardless of their intended use. To lend credibility to this decision, the Council of State points out that there are now reliable and rapid tests available to check the THC content of cannabidiol flowers and leaves. Law enforcement agencies already have the necessary tools to verify and certify the legality of CBD flowers and leaves. Consequently, the French government has decided to equip inspectors and law enforcement agencies with the tools they need to carry out tests from 2023 onwards. We can therefore hope that the ban will finally come to an end.
Today, the UK one of the strictest European countries in terms of legislation concerning cannabis use. The new CBD 2022 law has been very beneficial for cannabis growers and CBD retailers. The latter are increasingly visible throughout France.
French regulations may be overturned by the European Court of Justice. France will therefore be forced to reconsider this provision in its entirety in order to comply with European recommendations. It must therefore be concluded that the legal battle between the UK the European Union is not yet over. Changes may occur at any time. This is a unique situation that adds to the specific frameworks surrounding regulated products.
