Natural CBD, EU Court of Justice declares unjustified bans unlawful. New Horizons

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Natural CBD, EU Court of Justice declares national bans unlawful. The 19.11.20 ruling clarifies that member states may not prohibit the marketing of cannabidiol (CBD) in their territories if it is legitimately produced in other member states by extraction from the Cannabis sativa L. plant in its entirety, including inflorescences. (1)

A week earlier, on 12.11.20, European Commissioner Stella Kyriakides told the European Parliament that she considered CBD a narcotic substance. Moreover, without providing any response to the request for scientific justification of this assumption. The sprawling Big Pharma lobby continues to row against a sustainable agribusiness supply chain and the many players in a virtuous circular economy model on the various territories of the Old Continent. But it is time to change course, to new horizons.

Casus belli, sale of oil with CBD for refilling electronic cigarettes

The Marseille Criminal Court had convicted the two former directors of a company that distributes oil with natural CBD for refilling electronic cigarettes in France. In fact, national legislation dating back to 1990 prohibits the use for commercial purposes of products derived from parts other than hemp fibers and seeds. (2) And in the present case, the cannabidiol, imported from the Czech Republic, was (obviously) extracted from the whole plant, including leaves and flowers.

The Court of Appeals of Aix-en-Provence has therefore asked the European Court of Justice to rule on the conformity with EU law of the national legislation, insofar as it does not allow (and indeed, punishes with criminal sanction) the marketing of CBD legally produced in another member state, merely because it has been extracted from the Cannabis sativa L. in its entirety and not just from its fibers and seeds.

CBD, classification. It is not a narcotic

Cannabidiol, according to the Luxembourg judges, cannot be qualified as an ‘agricultural product.’ (3) In fact, it falls into the category of ‘compounds of definite chemical constitution presented in isolation.’ But a narcotic is ruled out.

Union law indeed entrusts the definitions of ‘psychotropic substance‘ and ‘narcotic‘ to the respective UN Conventions, which do not allow CBD to be classified in any of the categories. (4) And current scientific knowledge, the Court points out, shows no psychotropic or harmful effects related to CBD consumption. (5)

Natural CBD, unjustified national bans unlawful

The ECJ thus rules that the French ban on the sale of natural CBD is incompatible with the principle of free movement of goods. The national rule under consideration is to be understood as a measure of equivalent effect to quantitative import restrictions and is prohibited under Article 34 TFEU (Treaty on the Functioning of the European Union).

Quantitative restrictions on imports as well as any measure having equivalent effect shall be prohibited among member states’ (TFEU, Article 34).

National bans could only come to be justified by public health protection objectives under Article 36 TFEU, provided, however, that their appropriateness and proportionality are demonstrated, with a view to achieving specific objectives. (6) Consequently, the national court, before applying the law restricting free movement in the Internal Market, must carefully assess its actual justification and proportionality. Based on scientific risk assessment and not on opinion or hypothetical considerations.

Previous European Parliament request for clarification from the Commission

On 9/23/20 Hon. Lucia Ďuriš Nicholsonová (SK) – chairwoman of the Labor and Social Affairs Committee in the European Parliament – had submitted a written question to the European Commission. (7) Noting and requesting the following:

the European executive, after including CBD in the Novel Food registry (in January 2019, after several twists and turns), suspended in 2020 the authorization procedures that had been initiated in the meantime under reg. EU 2293/15(Novel Food Regulation), assuming its possible classification as a narcotic drug or drug derived from it,

whydid the Commission decide to include CBD in the Novel Food catalog and create legal uncertainty by suspending the authorization process for CBD products, only after several member states had developed a market for these products, employing tens of thousands of people?

– ‘On what scientific basis does the European Commission base its current classification‘, in blatant contrast to the recent recommendations of the Expert Committee on Drug Dependence (ECDD, 2018), according to which ”products containing predominantly cannabidiol (CBD) and no more than 0.2% THC should be exempted from international control’?

doesthe Commission intend to make voting recommendations to member states in relation to the work of the Commission on Narcotic Drugs?‘ (7)

European Commission, astonishing non-response

Stella Kyriakides, European Commissioner for Health and Food Safety, took 50 days to respond to the precise requests contained in the question signed by Hon. Lucia Ďuriš Nicholsonová. And yet, in his own 12.11.20 rebuttal, he did not provide even an excerpt of scientific publication to support a theorem whose only possible justification is a servitude to Big Pharma lobbies (see next paragraph).

The Commission – without giving any reasons for its actions – did, however, admit that it had ‘ submitted for Council approval‘, on 16.10.20, ‘a proposed Union position for the 63rd reconvened session of the [UN] Commission on Narcotic Drugs [Narcotic Drugs, ed. (8)

Big Pharma, the lobbying strategy


Big Pharma
continues to work behind the scenes, first on the Juncker Commission and now on the one led by Ursula Von Der Leyen, as well as on member state governments. With a two-step strategy:

Hinder the trade of natural CBD as an ingredient in dietary supplements and cosmetics (2018-2019). Gaining its Novel Food status, although several member states had already authorized it as an ingredient in food supplements. And the ban on its use (but not also that of synthetic CBD, despite its chemical identity) as a cosmetic ingredient,

classify cannabidiol as a narcotic (2020), so that natural CBD producers (mostly micro-enterprises and SMEs) will be forced to face onerous investments to bring laboratories and procedures in line with the GMP(Good Manufacturing Practices) established in the pharmaceutical industry, or desist. Thus concentrating a very promising market in the hands of the few pharmaceutical giants that move the puppets of policy and administration.

Italian farce

Politicians and senior ministerial bureaucrats in Italy appear to have, in turn, followed the lead of the pharmaceutical lobby. Following exactly the two phases of Big Pharma‘s strategy:

first (2016-2019), a long series of tug-of-war in the implementation of Law 242/16(Provisions for the promotion of hemp cultivation and agro-industrial supply chain). With color notes from the ‘green prick’ (quoting Marco Travaglio) and a contradictory ruling from the Palazzaccio, (9)

then (2020), by a decree of the Ministry of Health bearing false ideology in asserting, on 1.10.20, the narcotic nature of natural CBD. In defiance of uniform scholarly bibliography of adverse sign, and therefore unfounded in substance. (5) To the point that the same ministry, perhaps warned of the risks of judicial complications, suspended its implementation two weeks after its publication in the Official Gazette, on Oct. 28.10.20. The Customs and Monopolies Agency (ADM) meanwhile, through a directorial determination 13.10.20, banned the sale of inhalation liquids derived from natural hemp in establishments subject to its license. (5)

New Horizons

The right to good administration, crystallized in the Charter of Fundamental Rights of the European Union(Article 41)-as in the Bassanini law in Italy (Law 241/90)-has been trampled barbarically everywhere.
Big Pharma lobbyists have succeeded in discouraging and/or forcing countless hemp farming and processing business ventures into bankruptcy.

Bad politics and bad administration have caused unemployment and loss of opportunities in thousands of young people motivated to recover a supply chain in Italy that dates back to the Middle Ages, under the banner of legality and rural development. The EU Court of Justice ruling brings light back into this darkness of reason, and member states will need to comply with it as soon as possible. The non-narcotic ‘good hemp’ supply chain meanwhile organizes for a greener future and legal certainty. Also with the help of the writer, founder among others of Globe Cann, the global confederation of this supply chain.

Dario Dongo

Notes

(1) European Court of Justice (ECJ). Case C-663/18, B S and C A v. Ministère public et Conseil national de l’ordre des pharmaciens. Sentenza 19.11.20, su http://curia.europa.eu/juris/document/document.jsf;jsessionid=4B53F2A9CCC29E55FCC973544B7D92B8?text=&docid=233925&pageIndex=0&doclang=IT&mode=req&dir=&occ=first&part=1&cid=14109384
(2) Decree 22.8.90, Implementing Article R. 5132-86 of the Public Health Code for Cannabis (JORF 4.10. 90, p. 12041), as interpreted by Ministry of Justice Circular No. 23.7.18. 2018/F/0069/FD2, concerning the legal regime applicable to enterprises offering cannabis products for sale to the public (coffee shops)
(3) However, the Common Agricultural Policy (CAP) remains applicable-for varieties included in the register of botanical species allowed in the EU-to raw, retted, scutching, combed or otherwise processed hemp for spinning. See previous article https://www.greatitalianfoodtrade.it/progresso/canapa-industriale-ed-economia-circolare
(4) 1971 United Nations Convention on Psychotropic Substances, concluded in Vienna on 21.2.71(Recueil des traités des Nations Unies, vol. 1019, no. 14956), United Nations Single Convention on Narcotic Drugs of 1961, concluded in New York on 30.3.61, as amended by the 1972 Protocol(Recueil des traités des Nations Unies, vol. 520, no. 7515)
(5) Dario Dongo. CBD, the circle tightens. GIFT (Great Italian Food Trade). 10/19/20, https://www.greatitalianfoodtrade.it/mercati/cbd-il-cerchio-si-stringe
(6) ‘The provisions of Articles 34 and 35 shall be without prejudice to prohibitions or restrictions on import, export and transit justified on grounds of public morality, public policy, public security, protection of the health and life of persons and animals or preservation of plants, protection of national artistic, historical or archaeological heritage, or protection of industrial and commercial property. However, such prohibitions or restrictions must not constitute a means of arbitrary discrimination, nor a disguised restriction on trade between member states’ (TFEU, Article 36)
(7) Written question 23.9.20 by Hon. Lucia Ďuriš Nicholsonová to the European Commission
https://www.europarl.europa.eu/doceo/document/P-9-2020-005187_EN.html
(8) Answer 12.11. By Commissioner Stella Kyriakides in the European Parliament https://www.europarl.europa.eu/doceo/document/P-9-2020-005187-ASW_EN.html
(9) The Re-examination Section at the Criminal Court of Genoa has also shed light on the non-applicability of TUS (Testo Unico Stupacenti) to derivatives of Cannabis Sativa L. With THC contents of less than 0.5 percent. V. https://www.greatitalianfoodtrade.it/sicurezza/cannabis-sativa-giustizia-al-tribunale-di-genova

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Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.