AS the KanaVape case awaits European Court of Justice (ECJ) ratification its implications for the hemp and CBD markets across the continent are still uncertain, says Tim Phillips, Managing Director of Barcelona-based CBD-Intel.
“This is a really complex area of law, and while I do think that this is of course a positive step for hemp-derived CBD in Europe, we should perhaps not jump too far along the track of celebrating the removal of restrictions over using hemp flower in general within the EU.
The rules on manufacturing and/or selling CBD product extracted from flower is a real patchwork across the EU, and difficult to summarise in a paragraph.
Suffice to say that even though the black and white law might be a patchwork, and important cases like the KanaVape case will help to clarify and solidify this legal landscape, the reality on the ground is that the law is poorly enforced across the EU and manufacturing from flower and selling products derived from flower is certainly very widespread, as it has to be due to the manufacturing process.
Law-Abiding Business Suffer
The problem with overly burdensome laws like we have seen as the subject of the KanaVape case is that very law-abiding companies will try hard to stick to the rules, but the market becomes dominated by companies who are willing to take a risk.
The idea that hemp flower should be left to rot and CBD be manufactured from the left-over stems and seeds is just not practicable or economic, so this sort of restriction does not sit comfortably alongside regulations which allow the sale of CBD finished products on the market.
There is also the added difficulty of enforcement for authorities – given the difficulty in identifying and distinguishing hemp flower from ‘marijuana’ (cannabis flowers).
However, the EU Advocate General’s opinion needs to be followed by the court, which is not a given, particularly in a very controversial sector such as this.
The extent to which it sets a precedent for courts in other European markets will depend on how narrowly the case is interpreted – whether it just affects the legality of importation of CBD products derived from flower extraction in EU countries where it is allowed to be extracted in this way, or whether it can be interpreted more widely to enable extraction from flower in all EU markets?
Novel Food & Other Regulatory Issues
It is worth remembering that other restrictions may be implemented in place of the ban which is the subject of the court case.
In addition, there are many other regulatory issues which will also impact the CBD market over the next few months and years, including Novel Food regulations for CBD ingestible products, and a re-negotiation of the Tobacco Products Directive which we expect to include CBD in vape products.
Nevertheless, the more regulators start to understand the CBD market and the reality about the manufacturing process for the product, the more likely we are to get sensible regulations which encourage law abiding compliant companies to enter the market, and compete successfully against those companies who ignore the rules.”
Tim Phillips, Managing Director, CBD-Intel
CBD-Intel provides impartial, independent and premium market and regulatory analysis, legal tracking, and quantitative data for the cannabidiol (CBD) sector worldwide.