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Kanavape case: The Advocate General of the CJEU concludes that French restrictions on CBD are contrary to European law

15 May 2020 Marie SANCHEZ

On Tuesday 14 May 2020, the Advocate General of the CJEU presented his opinion (here) in the Kanavape case. The Court of Appeal of Aix en Provence (France) asked the CJEU to give a preliminary ruling on whether the French regulation which restricts the culture, the importat and the industrial and commercial use of hemp to the fibers and seeds of the plant only (hence excluding the leaves and flowers), is contrary to European law and in particular to the principle of free movement of goods.

The main dispute relates to the marketing in France of a vaping product containing cannabidiol (CBD) imported from Czech Republic and extracted from the whole plant, including leaves and flowers.

In his opinion, the Advocate General invites the Court to consider that Articles 34 and 36 of the FEU Treaty preclude a Member State from prohibiting the import of cannabidiol oil when it is extracted from the whole plant and not solely from seeds and fibers, since the current state of scientific knowledge has not established that cannabidiol has psychotropic effects.

The Advocate General adds that should restrictions apply in the event that a risk associated, inter alia, with the non-psychotropic effects of CBD is identified and has been subject of a comprehensive scientific assessment, an alternative measure less restrictive of the free movement of goods could be adopted (e.g. establishing a maximum CBD content).

While one should remain cautious and wait for the decision of the Court, the position of the Advocate General marks a positive and encouraging first step for the hemp industry in France as well as in Europe: should the CJEU follow the Advocate general’s opinion, it could open the way to a review of the CBD regulation in France but also to a harmonization of the regulation of CBD at European level, which is critical for the good development of this sector. To be continued …

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