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The legal qualification of CBD

Updated: Aug 9, 2023

Introduction


Over the last couple of years, an increasing number of entrepreneurs have invested in the trade of cannabis-based products. This development has led to concerns with regard to the potential harm of these products as well as their legal status. This blog will discuss the concerns regarding the legal status of CBD, by analyzing the ruling of the European Court of Justice on November 19, 2020.


The facts


B S and C A are the former directors of Catlab SAS, a company formed in 2014 to market Kanavape. Kanavape is an electronic cigarette. The liquid used in the electronic cigarette contains CBD. The electronic cigarette was to be distributed online as well as through a network of sellers of electronic cigarettes.


The CBD used in the electronic cigarette was being legally produced in the Czech Republic, using the entire cannabis plant. In addition, the plant from which the CBD was extracted did not contain more than 0.2% THC.


Prior to the launch of the electronic cigarette, Catlab SAS started an information campaign. The information campaign resulted in an inquiry by the French National Agency for the Safety of Health Products.


On January 8, 2018, the French court ruled that the operations of Catlab SAS constituted a violation of the legislation on poisonous substances. More specifically, the French court ruled that the operations constituted a violation of Article R. 5132-86(1) and (2) of the Public Health Code.


B S and C A launched appeals against the above mentioned court ruling, stating that the French legislation is in violation of European law. In response, the referring court requested the European Court of Justice for a preliminary ruling.


Applicability of the Single Convention on Narcotic Drugs


The European Court of Justice starts off by explaining the projective of the Single Convention on Narcotic Drugs, which is protecting the health and welfare of mankind. The provisions in the Single Convention on Narcotic Drugs should be read in light of the said objective.


The European Court of Justice proceeds by citing Article 1 of the Single Convention on Narcotic Drugs. According to Article 1, the term ´drugs´ means any substance in Schedules I and II of that convention. Listed in Schedule I of that convention are: cannabis, cannabis resin and cannabis tinctures and extracts.


Strictly speaking, the CBD product in question falls within the meaning of Article 1 of the Single Convention on Narcotic Drugs. However, given the fact that CBD in question does not appear to have any psychotropic or harmful effect on human health, and that the level of THC present in the substance does not exceed the limit of 0.2%, the European Court of Justice rules that CBD is not considered to be a drug within the meaning of the Single Convention on Narcotic Drugs.


Want to know more?


The cannabusiness is booming. Despite the increasing availability of CBD, many questions remain regarding the legality of the product. Feel free to contact one of our lawyers for more information.

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