Is the CBD illegal in France?

A ban in principle on cannabis

When it comes to cannabis, the principle is clear. Cannabis is prohibited in accordance with the public health code. The law considers it a narcotic. Its detention, even in small quantities, is illegal, and therefore subject to criminal sanctions. The penal code does not specify any minimum amount[1].

However, it should be noted that there is an exception to this principle. It concerns therapeutic cannabis. Nothing is definitive yet. In October 2019, the National Assembly authorized a two-year experiment on 3,000 patients with serious illnesses. The rest will probably build us up.

CBD, THC and Cannabis: A distinction must be made

Cannabis is composed of about 100 molecules, mainly cannabidiol (CBD) and tetrahydrocannabinol (THC).

Several studies have shown that THC is responsible for psychoactive effects[2]. The Court of Justice of the European Union admitted this in its judgment in the case of C-663/18, known as Kanavape, handed down on 19 November 2020. As for CBD, it does not induce any side effects such as anxiety, paranoia or addiction.

The two molecules CBD and THC, are certainly present in cannabis, but there are techniques such as CO2 extraction to extract and separate one from the other. CBD is therefore not considered a narcotic. It is this specificity that justifies the various laws relating to cannabis.

Legal framework of the CBD in France

The CBD legal framework in France is determined by three main pieces of legislation: the public health code, the decree of 22 August 1990 and the Decree of 22 February 1990.

The Public Health Code

Article R5132-86 of the Public Health Code, in its first paragraph, states that "the production, manufacture, transport, importation, export, possession, supply, disposal, acquisition or use of cannabis, its plant and resin, products containing it or those obtained from cannabis, its plant or resin are prohibited."

In light of the provisions governing narcotics, this prohibition applies to cannabis, the plant, resin, and tetrahydrocannabinol.

However, this text of Article R5132-86 of the Public Health Code provided in paragraph II for a waiver mechanism for "certain cannabis varieties devoid of staggering properties or products containing such varieties."

This derogation mechanism was put in place through the taking of the decree of 22 August 1990.

The order of August 22, 1990.

This order determines which cannabis varieties are exempt. Therefore, any product containing CBD extracted from hemp is prohibited unless it is included in the derogatory list established for that purpose.

This list is in Article 2 of the ordered [4] and includes 18 varieties, all from the Sativa L variety. Examples include Carmagnola, Fedora 19, Fibrimon 56 and Santhica 27 etc.

Moreover, according to the same order, only the fibres and seeds of these varieties are affected. They must also obey two essential conditions:

• The THC content of these varieties should not exceed 0.20%

• The THC method must be consistent with the law.

The decree of 22 February 1990

In France, a list of substances regulated or banned, except for medical reasons, is drawn up and governed by the decree of 22 February 1990. These substances are actually equated with narcotics. The update of this list is continuously assured, to include synthetic drugs as well.

French legislation for consumers

To better understand the legislation on the consumption of CBD in France, we will first discuss the legal framework for vaping e-liquid extracted from the CBD, then the sports provisions and finally, the therapeutic use of CBD.

Vaping e-liquid extracted from CBD: What does the law say?

There is legislation on vape that applies to e-liquids extracted from the CBD. French law allows adults to vaper e-liquids[5]. When you are a minor (a person under the age of 18), you fall under the law in the case of vaping e-liquids extracted from the CBD.

In addition, in schools and structures dedicated to the reception, training and accommodation of minors, it is strictly forbidden to vape. This is the case in closed public transport and in closed and covered workplaces for collective use, in accordance with the decree of 27 April 2017[6].

The use of CBD in French sport

With regard to the sports environment, it should be mentioned that since1 January 2018, CBD is no longer mentioned among the doping products of the Anti-Doping Agency. As a result, through Decree No. 2018-1283 of December 27, 2018, France removed the CBD molecule from the list of substances banned in sport on its territory.

It shows that French athletes can use CBD without being worried by anti-doping control.

Therapeutic use of CBD

Recognition of the therapeutic properties of CBD is slow to materialize, as legislators fear that this will lead to cannabis legislation. In France, for example, there are only two drugs manufactured with CBD that are allowed[7]. These are Sativex and Epidiolex.

Sativex, also composed of THC, is intended for patients with multiple sclerosis. However, it is not available in pharmacies in France because an agreement on the price of its reimbursement by the State has not been found.

As for the Epidiolex, it contains no trace of THC. It is recommended in case of epilepsy if there is no other medication suitable for the patient.

However, the first step, before any prescription, should be required to wait for the issuance of marketing authorization (MMA) by the National Agency for Health and Medicine (ANSM)[8].

It should be noted that this authorization is only temporary [9].

What about the legislation for producers?

Hemp producers are subject to strict legislation. They are not allowed to resow their own seed. Hemp growers must obtain their seed from an approved organization called the "Coopérative Centrale des Producteurs de Semences de Chanvre (CCPSC)" [10] », in accordance with their production contract.

The relevant services also monitor them for the purpose of verifying the level of THC (which cannot exceed 0.2%) and the variety of cultivated hemp.

Legislation for resellers

Based on a December 2018 order, the Interministerial Mission for the Fight against Drugs and Addictive Behaviors (MILDECA) listed to CheckNews, three cumulative conditions for the marketing of CBD varieties[11].

These, it affirmed, must appear on the exhaustive list registered in article 2 of the decree of August 22, 1990. Moreover, the cannabis plant must have a THC content lower than 0,2%. Moreover, only its seeds and its fibers can be used.

As for the finished product such as oils, creams and cookies, there must be no trace of THC, whatever the level.

Consequently, all retailers who market CBD products, even with a minimal amount of THC, are in violation of the legal provisions in this area. Logically, the sale of cannabis flowers and leaves is also forbidden[12].

This clarifies the misinterpretation of the law by CBD shop owners. So why aren't they being prosecuted? The answer is quite simple: It is actually very difficult, whatever the extraction method, to obtain at the same time 100% CBD and 0% THC in a finished hemp product.

But the position of some international institutions and especially that of the European Court of Justice will probably plead for the relaxation of the legislation in this matter.

The influence of certain international organizations and the European Court

The French law on CBD legislation is indeed influenced by the positions of international organizations as well as those of the European Union legislator.

Influence of certain international organizations

The WHO took up the issue of CBD in 2017. This organization has largely defended that CBD does not pose a threat to health and is not addictive. It has also removed it from the list of doping products and called for further research for its therapeutic properties[13].

Furthermore, it is useful to note that CBD is not taken into account in the UN convention on drugs [14]. It goes without saying that the UN body excepts CBD from the category of narcotics.

As for the position of the Court of Justice of the European Union, it will strongly influence the French legislation on cannabis in the years to come.

The position of the Court of Justice of the European Union

The Hammarsten decision of 2003[15] rendered by the Court of Justice of the European Union had already expressed hostility to the restriction undertaken by certain States of the Union, despite the norms elaborated by the community law of the EU.

The main issue is indeed linked to the risk of disparity in legislation within the EU, thus compromising the principle of free movement of goods. In this respect, the French regulation has been judged contrary to European Union law[16].

Better yet, on November 19, 2020, we witnessed a major decision in Community law through a ruling in case C-663/18, known as Kanavape [17].

The question, in this case, was whether the prohibition in France of the consumption or importation of CBD oil was consistent with the EU regulation.

 The question is worth asking because, in France, the various commercial and industrial operations involving hemp are limited to seeds and fibers, while the manufacture of oil involves the whole cannabis plant.

The ruling declared that CBD oil, as it stands, does not constitute a narcotic drug. In this judgment, the Community judge also reaffirmed the principle of the free movement of goods.

The French authorities have taken note of this ruling and have promised to take into account the conclusions of the judge.

What to remember?

The legislation in force in France in relation to CBD requires compliance with certain provisions

• Never present CBD as a medicine

• CBD is prohibited from advertising, under this order

• CBD products must come from varieties established by law

• Cultivated hemp plants must have a content of 0.2% or less

• Finished CBD products containing more than 0% THC are illegal

As you would have understood, there is really a legal blur around the legislation on CBD. This vagueness is also reinforced by the disparity of provisions and repression in some parts of the French territory. Is CBD legal or illegal in France? It is up to you to judge.

[1]https://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000006417724&cidTexte=LEGITEXT000006070719&dateTexte=20020101

[2] https://www.rnd.de/politik/furs-kiffen-nach-karlsruhe-richter-halt-verbot-fur-verfassungswidrig-ZO3SVKUJMZEZZF6WL2A3ARABK4.html

[3] https://www.drogues.gouv.fr/actualites/cannabidiol-cbd-point-legislation

[4] https://professeur-cbd.com/apprendre/legislation

5] Comments made by the Minister of Health at the end of November 2017, https://agauche.org/2020/07/20/lessor-du-cbd-en-france-un-pas-de-plus-vers-la-legalisation-du-cannabis/.

[6] https://lentreprise.lexpress.fr/rh-management/droit-travail/vapoter-au-travail_1735126.html

[7] https://www.syndicat-simples.org/la-production-et-lutilisation-du-chanvre-quel-cadre-juridique-en-france/

8] Decree No. 2013-473 of 5 June 2013.

[9] https://professeur-cbd.com/apprendre/epilepsie

[10] Senat.fr

[11] https://www.liberation.fr/checknews/2019/07/04/cannabis-cbd-un-an-apres-ou-en-est-on_1737928

[12] https://www.liberation.fr/checknews/2019/07/04/cannabis-cbd-un-an-apres-ou-en-est-on_1737928

[13] https://www.who.int/

[14] https://www.liberation.fr/france/2020/11/19/interdiction-du-cbd-en-france-camouflet-europeen-et-fumee-verte-pour-le-marche_1806070

[15] https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A62001CJ0462

[16] https://www.village-justice.com/articles/les-usages-chanvre-cannabidiol-lecture-jurisprudence-communautaire,37231.html

[17] https://www.village-justice.com/articles/les-usages-chanvre-cannabidiol-lecture-jurisprudence-communautaire,37231.html