Five judges must rule today on the legality of the ban that France implemented on hemp-derived cannabidiol, or CBD oil products. The decision of these judges, from the European Union’s highest court in Luxembourg, has the potential to upend the future of Europe’s entire hemp industry. It might well have global implications too. Now, some Europeans can buy hemp oil online. Tomorrow, who knows?
The ruling from the Court of Justice of the European Union on the alleged Kanavape case is among the most anticipated of decisions for Europe’s CBD market. It sets precedent. It also sets the mood for the European Commission to make a final decision on whether it should regulate hemp-derived CBD as a narcotic with other narcotics, such as heroin and cocaine, instead of as a natural edible oil.
Importantly, the ruling comes just two weeks before a vote in December by the United Nations Commission on Narcotic Drugs. It is voting on how to schedule cannabis and related substances in two international treaties on narcotics. One of them, the 1961 U.N. Single Convention on Narcotic Drugs, is now under scrutiny by the European Union court while it deliberates in the Kanavape case.
It all began in 2014. The Kanavape case started in France with an argument over the advertising of CBD oil products. The contents of these products originated in the Czech Republic. France, a leading country in Europe for cultivating hemp, prohibits all advertising for it. You cannot market hemp in France, nor any products made from any part of the hemp plant.
Under this ban, French authorities were able to prosecute Antonin Cohen and Sebastien Beguerie for marketing Kanavape, a brand associated with hemp-derived CBD oil products. However, the oil used in Kanavape products came from hemp grown legally in the Czech Republic. There was no real issue, but authorities just had to find one, even if science proves CBD safe.
The issue prompted an appeals court judge in France to send the case directly to the European Union Court of Justice. He wanted to know if the restriction on hemp products in France in any way violated the bloc’s principle of free movement. Then, in May, one of the top court’s advisors said that France’s ban on hemp-related marketing contrasted with European Union laws on the free movement of goods.
Importantly, this legally non-binding opinion originated from the advocate general’s belief that the principle of free movement applies because CBD derived from hemp does not classify as a narcotic substance under that United Nations treaty of 1961. Generally, court judges follow the advice of the advocate general. Generally. Except, not this time.
This interpretation may not be the situation for this particular case. The Kanavape case relies heavily on the understanding of a decades-old treaty on narcotics. One with wording that has even longer angered hemp regulators and activists everywhere. These five top court judges could provide a more detailed analysis of the 1961 treaty than that which the advocate general offered back in May.
In May, the advocate general ruled cannabidiol a narcotic. As such, it is therefore not subject to the principle of free movement by the European Union. As it stands now, the five judges might well interpret the treaty in a favorable light for CBD. However, no matter how favorable, they will not rule in the same terms as that of the general advocate.
At a time most critical to the CBD industry comes this case. To set a binding precedent. According to Eveline van Keymeulen, a lawyer representing Cohen, the decision that follows the opinion of the advocate general “will have significant impact on the CBD industry in Europe, which is losing market share compared to other regions, such as the U.S. and Canada” due to a fragmented legal framework.
“It would not only require France to adapt its legislation in order to allow the marketing of CBD extracted from the entire hemp plant,” van Keymeulen wrote as counsel at Allen & Overy, a law firm based in Paris. “It may also force other national regulators to examine existing restrictions related to hemp-derived products in light of the free movement of goods in the European Union.”
The Syndicat Professionnel du Chanvre, an association of hemp operators in France, recently reached out to policymakers. According to its spokesperson, Melchior Bachelet, they stand ready to prepare lawmakers for a myriad of potential rulings and to consider how they each might influence trade within the European Union and the French hemp industry specifically.
In California, CBD oil products are legal and easily available. With science proving CBD safe, you can find it almost anywhere. From natural edible oil to CBD buds, tinctures, even feminine hygiene products, the future looks decidedly CBD. The decision of judges in Europe on the free movement of hemp will certainly affect the United States market, particularly those companies still importing European hemp.
It seems inevitable that CBD will legalize worldwide. It has huge medicinal use and is not addictive in any way. It has no potential for abuse either, since nobody ever died from CBD. Its declassification as a narcotic seems imminent with such evidence today, but until regulators stop haggling out the minor details, we might see challenges in CBD markets globally. Thankfully, California is showing the way.