FRANCE’s highest court, the Council of State, has officially scrapped an attempted ban on the sale of CBD flowers and leaves.
CBD retailers and tobacco shops across France, thousands of which are understood to receive over half of their revenue from raw CBD flower sales, have welcomed the decision following months of trading under the shadow of the potential ban.
While many believe the ruling will put the issue to bed and help reinvigorate investment in France’s CBD and hemp industry, a response from the government published earlier this week seems to suggest otherwise.
With talk of creating a new ‘regulatory framework that allows the secure development of new economic activities related to hemp’, and political rhetoric continuing to echo the war on drugs, the government may yet provide more roadblocks for the burgeoning sector.
On December 30, 2021, the French government passed a decree revising the regulations applicable to the cultivation, import and use of hemp.
This effectively banned the sale of raw flowers and leaves in all their forms, alone or mixed with other ingredients, alongside prohibiting their possession.
The controversial move was pitched as a public health measure, arguing that authorities would be unable to determine which flowers contained high levels of THC and which had under 0.3% and were officially classed as hemp.
Its ramifications would have been devastating for the country’s CBD industry, which, according to Aurélien Delecroix, president of the Hemp Professional Syndicate (SPC), includes thousands of retailers that receive ‘50% to 70%’ of their turnover from the sale of CBD flower.
Just days after the decree was passed, the Council of State, led by Judge Mrs Von Coester, heard legal challenges from bodies including the SPC and the Union of CBD Professionals (UPCBD).
The Council of State ruled in late January that the decree ‘does not follow from the investigation that hemp flowers and leaves with a THC content of no more than 0.3% would be harmful to health to such an extent as to justify a general and absolute prohibition on their sale’.
The ban was subsequently ‘temporarily suspended’, allowing retailers to continue trading CBD flower until the Council of State issued its final verdict on the decree.
Speaking to Libération, Mr Delecroix said that this left the industry with ‘the sword of Damocles’ hanging above their heads for months, ‘paralysing the industry’ and making brands reluctant to commit to listing products that could be recalled at the drop of a hat.
‘A Very Good Ruling’
On Thursday, December 29, 2022, the Council of State issued its final verdict, ruling that the ban was ‘disproportionate’ and that ‘the harmfulness of other molecules present in cannabis flowers and leaves, in particular CBD, has not been established’.
Not only did the council maintain the Court of Justice of the European Union’s judgement in the 2020 Kanavape case, which opened the doors for the French CBD industry after a protracted legal battle, but also it readily dismissed government claims that police are unable to tell the difference between high THC and CBD flowers, pointing to rapid tests which have been available for a number of years.
Its decision has understandably been welcomed by the industry, including the French Association of Cannabinoid Producers (AFPC), who said in a statement: “As the representative of more than 300 farms involved in the production of active hemp, the AFPC welcomes the decision of the Council, which will allow all the players in the French CBD sector, which currently has more than 30,000 jobs, to develop their activities serenely.”
Benjamin-Alexandre Jeanroy, of Paris-based cannabis consultancy Augur Associates, explained that this decision ‘could have gone either way’, but that it was ‘quite reassuring’ the French court referred to scientific evidence to come to their decision, something ‘not a lot of regulators do’.
“The fact that France is going this way is something good, and quite the opposite of rulings in Germany, for example.”
In October, the German Federal Court of Justice upheld the convictions of two defendants convicted of selling large amounts of CBD flower, a decision that has had major implications for the country’s CBD market.
“In the ruling it was mentioned that CBD was good for certain things. It was shown to be non-addictive and non-toxic. They didn’t come up with this; it came from scientific reviews, from the WHO ruling and other sources.
“Those things are available in other countries; it’s just about taking them into account, and France has just started to do so. For the first time they are basing their arguments on very tangible results and existing scientific and policy literature.”
What does this mean for the French CBD industry?
While retailers have been able to continue selling their products since the ban was temporarily suspended, this new ‘legal stability’ should encourage bigger players to enter the market.
According to Mr Jeanroy, this is a double-edged sword, meaning more opportunities and capital flowing into the market but also more competition for smaller players.
“It’s a win for the smallest actors of the industry, especially the farmers, who can now sell directly. Their products no longer have to have a specific contract agreed to operate with another industrial actor for the extraction.
“But it puts that at odds with bigger actors, who are going to come into the playground now. I’ve been telling my clients for four years that now is a great time to get into the market because it’s not super clear legally. It’s an opportunity because only small actors will take the risk.
“Now we have opened the door, we may have more competition.”
However, following the government’s response to the ruling, Mr Jeanroy believes this battle is ‘far from over’.
When this decree was suspended last year, the government was thought to be pushing its tough stance on drugs due to the looming election.
Despite the election being concluded in the first half of 2022, Mr Jeanroy argues that ‘the political line hasn’t changed’, but it could help to have a more stable discussion on the topic.
Although the government’s response didn’t offer much new in terms of its position, it serves as ‘confirmation that they’re really not happy and they will do their best to complicate things in future, so we are far from safe for now’.
It also makes reference to Novel Foods, and the EFSA for the first time, which effectively halted all CBD applications progressing in June 2022 until ‘many data gaps’ have been filled, something which has seen little meaningful progress since. This would lead to a ‘de facto interdiction’ until these regulatory issues are overcome.
“This might potentially be transformed into new regulations on some dimension, only time will tell.”