The CJEU was first called to intervene on the matter in 2018, by the Aix-en-Provence Court of Appeal. The latter was dealing with the Kanavape case, a CBD e-cigarette which was marketed as “100% legal” by its manufacturer since it respected the maximum authorized rate of 0.2% THC.
The two makers of Kanavape had been sentenced by the Marseille criminal court, for using an oil legally made in the Czech Republic. The problem was that the CBD they used was extracted from the whole Cannabis sativa plant, when France only allows the use of CBD oil that has been extracted from the plant’s seeds and fibers. The court of appeal had considered the fact that the French CBD regulations were not in par with the less restrictive ones imposed by the EU.
The CJEU ruled in favour of “the free movement of goods” within the EU
Subsequently, last week’s CJEU judgment ruled in favour of “the free movement of goods” in the EU which “opposes national regulations” like that found in France, “since the CBD in question (…) cannot be considered a narcotic.”
The ruling added that the ban on this substance could, “be justified by an objective of protecting public health.” However, added the CJEU, “according to the current state of scientific knowledge, which it is necessary to take into account, unlike THC, another cannabinoid in hemp, the CBD in question does not appear to have any effect. psychotropic or harmful effect on human health.”
The ban could only be justified if the presence of health risks were confirmed
Moreover, added the European court, “the national court must assess the scientific data available in order to ensure that the real alleged risk to public health does not appear to be based on purely hypothetical considerations.” Ultimately, concluded the CJEU, the ban could only be justified if the presence of health risks is confirmed. “The ban on the commercialization of CBD (…) can only be adopted if this risk appears to be sufficiently established.”
