France’s ban on certain CBD products is illegal, the European Court of Justice (ECJ) has ruled, because the cannabis-derived substance has neither a “psychotropic effect nor negative effect on human health”.
CBD, or cannabidiol, is one of around 200 substances derived from the cannabis sativa plant. It is known to have a gentle relaxing effect - and is sold in everything from oils to food to massage cream.
In contrast to cannabis, it does not contain a significant amount of psychoactive compounds (such as tetrahydrocannabinol (THC), which is found in cannabis) and does not make its user “high”. It has been shown to help with anxiety, pain, depression, and other complaints.
The ECJ has said that its ruling concerns “[CBD] that is legally produced in another European Union member state, when it is extracted from the cannabis sativa plant in its entirety”.
CBD products have become more popular in the last few years, with many shops having opened in France since 2018, under a legal “loophole” that allows them to sell items with very little THC.
Yet, numerous court cases have been launched in France, accusing sellers of low-THC items of breaking the law.
One notable case involved two entrepreneurs from Marseille, who created a CBD-based e-cigarette named Kanavape, which launched in 2014. Its creators said that it was “100% legal” and contained a THC level of just 0.2%, well within technical legal limits.
But the correctional court in Marseille found the entrepreneurs guilty of using “illegal CBD”, sentenced them to 18 and 15 months of suspended jail time respectively, and fined them €10,000.
The Marseille court had said that the product used a CBD product from the Czech Republic, which was extracted from the entire cannabis sativa plant including leaves and flowers, whereas France technically only allows the use of CBD that has been extracted from seeds and fibres only.
But the ECJ has now ruled that the French regulations on this are not compatible with European law, and could not stand.
In its ruling, the ECJ said that "the free movement of goods" in the EU "opposes national legislation" such as that of France, "since the CBD in question...cannot be regarded as a narcotic".
It said that such a product could be banned “for the sake of public health”, but not under existing drug laws.
It said: “According to current scientific knowledge, it is necessary to acknowledge the difference between THC and CBD, [the latter of which] does not have any psychotropic effect or a negative effect on human health.
“The national court must assess the available scientific data to ensure that the alleged risk to public health is not based on purely hypothetical considerations.”
The ECJ said that France could only legally ban the marketing and sale of CBD-based products “if this risk [to health] appears to be sufficiently established”.
In the absence of such proof, such products are therefore legally permitted to be sold in France, the court said.