19 Nov, 2020

 

ACI Welcomes CJEU CBD Ruling

The ACI welcomes today’s ruling from the Court of Justice of the European Union (CJEU) which marks a landmark day for the CBD industry. 

In a press release published this morning the CJEU states that, “A Member State may not prohibit the marketing of cannabidiol (CBD) lawfully produced in another Member State when it is extracted from the Cannabis sativa plant in its entirety and not solely from its fibre and seeds.”

The Court observed that, “the provisions on the free movement of goods within the European Union (Articles 34 and 36 TFEU) are applicable, since the CBD at issue in the main proceedings cannot be regarded as a ‘narcotic drug’.”

This will have huge ramifications throughout the European CBD sector. The EU’s decision to potentially classify CBD as a narcotic is likely to be overturned which reopens the novel foods pathway to full legal compliance for CBD products sold as food.

“This is clearly an important decision for the European CBD industry.” says Adela Williams, Partner at Arnold & Porter, ACI’s legal counsel. “The EU’s highest court has decided that EU member states may not prohibit the marketing of CBD products lawfully supplied in other member states unless a real risk to public health has been demonstrated.  Furthermore, the European Court has confirmed that CBD should not be classified as a narcotic under the 1961 UN Convention on narcotics, removing an obstacle to the continued assessment of novel food applications relating to CBD products”

The case, commonly referred to as the ‘KanaVape case’, started in 2014, when French authorities deemed a French company selling electronic-cigarettes containing CBD oil to be contravening French law on hemp-derived CBD. French law prohibits the sale of CBD extracted from the whole plant (meaning only CBD extracted from fibre and seeds is permitted). However, the CBD used in KanaVape products was extracted legally in the Czech Republic, which permits the use of CBD extracted from the whole plant. 

In 2018, the initial ruling was overturned by the Court of Appeal of Aix-en-Provence on the basis that the ruling went against the principle of the free movement of goods across the EU. Subsequently, the Court of Appeal referred the case to the CJEU, which sought the opinion of Advocate General (AG) Evgeni Tanchev.

In May 2020, Tanchev’s view was that CBD should not be classified as a narcotic. Whilst this opinion was not legally binding, this was generally seen as positive news, as the courts usually follow the guidance given by the Advocate General.

Things were looking up for the EU CBD industry until the European Commission’s decided to suspend all novel food applications as it considered whether to class CBD as a narcotic or not. They stated that they would wait until the outcome of a UN CND vote on 2nd December 2020 and the initial optimism was somewhat dampened. The UN CND was due to vote on adopting WHO’s recommendations that CBD be exempt from a narcotic designation on the 1961 Single Convention on Narcotics.

With today’s ruling, CBD companies can expect a clearer route to achieving compliance across the EU. The harmonisation of cannabinoid regulations could finally become a reality.

“This is great news for the industry,” says Dr Parveen Bhatarah, Regulatory and Compliance Lead, ACI. “This is a step in the right direction for the future of the CBD industry. We look forward to hearing the EC’s decision and being in a position to help our members grow their businesses across Europe.”

The ACI has been following EFSA guidelines as set out by the UK FSA in regards to novel food applications on behalf of its members. The ACI will pursue clarification with the EC on their position after today’s ruling, and pursue authorisation at an EU level. 

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