Industrial hemp. The Criminal Court of Genoa, Review Section, has finally clarified that the sale of products with THC content of 0.5 percent or less does not constitute a crime.
Cannabis Sativa L., the Italian mess
Italian law no. 242/2016 introduced a series of measures to promote the industrial hemp supply chain, from the agricultural stage to the processing and distribution of a range of products. Food, cosmetics, feed raw materials, materials for agriculture and soil remediation, green building, bioplastics, biomass. With a view to fostering profitable cultivation and the sustainable development of a circular economy model. This is already the case in other European countries, from Germany to Sweden.
The stars of POP (Profit Over People) –
Big Pharma
and Big Tobacco – could not, however, accept any disturbance to their respective monopolies. Thus they have diverted politics, administration and the press to issues that have nothing to do with industrial hemp. In Europe-where the European Commission’s DG Grow has gone so far as to ban the use in cosmetics of CBD (cannabidiol, a non-psychoactive substance) naturally extracted from hemp, instead allowing the same chemically synthesized substance-as in Italy.
The Italian mess began with an opinion of the Consiglio Superiore di Sanità (CSS), which moreover has no legal value, in which possible improper uses of hemp inflorescences were theorized. Completely off topic from the topic to be covered, the limits of THC (tetrahydrocannabinol, a psychoactive substance) to be allowed in hemp-derived foods in order to ensure their food safety. This was later taken care of by the Istituto Superiore di Sanità (ISS), after a Ministry of the Interior circular ruled out the applicability of the Testo Unico Stupefacenti (TUS) to inflorescences of Cannabis Sativa L. with THC thresholds below 0.5 percent. (1)
Finally, ISS clarified the THC thresholds considered safe in different categories of foods. On this basis, the Ministry of Health has thus defined the permissible limits to ensure the food safety of the products in question. Notifying Brussels of its draft regulation 30.11.18, which, however, neglects inflorescences cut tisane already widely produced and marketed, including in Italy, in compliance with EU law.
Interior Minister Matteo Salvini, in preparation for the latest election campaign, then issued an anathema against ‘Cannabis shops.’ Under the banner of ‘of all the grass a Beam,’ the provisions of Law 242/16, which limits its scope to only those varieties of industrial hemp whose cultivation is permitted in Europe, have been completely ignored. Threatening the closure of several thousand stores that actually market the products derived only from them.
Industrial hemp, justice in hiccups
The Supreme Court – in a ruling by the United Sections 30.5.19, the ‘reasons’ for which are still awaited – has offered leeway to those who theorize defects of independence between the judiciary and the executive. The Supreme Court should have clarified the inapplicability of TUS to all products without psychotropic effects, as derived from hemp varieties allowed in the EU (subject to verification of compliance with THC thresholds established as safe by the Ministry of Health, in accordance with Law 242/16). But instead of clarifying the legal issue, the Supreme Court followed up on Salvinian inferences in muddying the waters, indeed the grasses.
The ermines of Rome have thus ruled that ‘the conduct of transferring, selling, and generally marketing to the public, for any reason whatsoever, the products derived from the cultivation of cannabis sativa l.‘ integrate the crime of drug trafficking, ‘unless such products are specifically devoid of drugging efficacy’. Therefore, the serious crime cannot occur in relation to those products for which it is the same Law 242/16-with the clarifications offered by the Ministry of Health-that excludes ‘drugging efficacy‘. But the ‘provisional interpretation’ of Rome’s togates is so arduous that it offers wide scope for discretionary applications, by investigating authorities.
The chain of command in the administrations of the various law enforcement agencies jammed in the legal abomination of the Supreme Court, then restarted unabated and invested hundreds of operators in the industrial hemp supply chain. Who-after investing resources to build completely regular businesses, ensuring compliance with every legal requirement-all of a sudden find themselves under investigation for drug dealing. And they suffer the ‘preventive seizure’ of goods that, however–according to the law, health administration and toxicology–have no psychotropic effect.
Industrial hemp, justice in Genoa court
The Criminal Court of Genoa, Re-examination Section, has been asked to rule on the seizure of a number of products-inflorescences, oils, herbal teas and leaves of hemp sativa-from a store in Rapallo, in the Gulf of Tigullio. In fact, the law enforcement authorities had proceeded to the ‘preventive seizure’ of the goods, assuming a priori that they constituted ‘body of the crime,’ i.e., ‘narcotics,’ without taking care to verify the (in)consistency of the alleged clues. And both the Deputy Prosecutor and the Judge of Preliminary Investigation had endorsed the charge based on nothing.
The hapless person on duty – and there are unfortunately many in Italy, because of the ranting ‘Interim interpretation no. 15‘ of the ermines – thus found himself under investigation for the serious crime of drug trafficking. By reason, it should be noted, of a commercial activity that is perfectly lawful since it refers to products derived from those varieties of industrial hemp whose cultivation is authorized in Europe, as in Italy, since they have no psychotropic effect. But after registering the business with the Chamber of Commerce, notifying the ASL of the sale of food, paying taxes to the Internal Revenue Service and contributions to INPS, the shopkeeper also had to enlist a lawyer to defend himself against slanderous charges. Not even Franz Kafka could have imagined such situations.
However, the Re-examination Chamber of the Genoa District Court has stepped in to rescue lost justice. In a pronouncement that one hopes will receive careful consideration, by law enforcement as well as the judiciary throughout Italy, the Genoa judges made it clear that hemp-derived products cannot be seized a priori. There is no fumus commissi delicti outside of only those cases in which-after dutiful analysis-the inflorescences are found to contain THC in excess of 0.5 percent.
In the absence of normative references to define the percentage of active ingredient that qualifies a product as psychotropic, the Superba magistrates therefore referred to the limit indicated in the Ministry of the Interior’s Circular 31.7.18. (2) This percentage, the Review Court points out, ‘remains the only parameter for potential psychotropic efficacy.’ As a result, neither the prosecutor nor the judicial police can seize the goods. Rather, they should, when in doubt, take individual samples for analysis. And only in the event of an actual finding of a higher threshold, at which point proceed to register the crime report and seizure.
Dario Dongo
Notes
(1) See Circ. Min. Interior 31.7.18, at http://www.canapaoggi.it/wp-content/uploads/2018/09/Cannabis-light-limitazione-ministero-interni-Salvini.pdf
(2) See Note 1
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
