CBD Ban: French Court Decision Could Impact Cannabidiol Industry in Europe

Advocate General Tanchev presented his opinion before the Court of Justice of the European Union (CJEU) declaring the French prohibition of hemp-derived cannabidiol (CBD) contrary to European Union law, which could have major implications for the CBD industry in Europe if the Court follows the Advocate General's opinion.

Currently, Antonin Cohen, former manager of Kanavape, is being prosecuted in France for selling vaping products made with natural CBD. The French regulatory milestone currently prohibits the marketing of products derived from the whole plant and therefore all products containing CBD, while the use of synthetic CBD (chemically identical) is generally allowed. In his opinion, the Advocate General concludes that: "[EU law] prevents a Member State from prohibiting the import of cannabidiol oil from another Member State, where that oil is extracted from the whole hemp plant, and not just its fibers and seeds, since, based on the current state of scientific knowledge, it has not been established that cannabidiol oil has psychotropic effects."

The Advocate General further argued for a proportional regulation of CBD products in Europe, less restrictive to the free movement of goods (for example, by establishing a maximum CBD content).

Impact on the European CBD market

Allen & Overy represents Cohen in the preliminary ruling proceedings at the CJEU (Case C-663/18).

Eveline Van Keymeulen, consultant at Allen & Overy's Paris office and head of the global Life Sciences and Cannabis Regulation practice, who is assisting Cohen in the proceedings, said: "If the Court follows the Advocate General's opinion, its decision will have a significant impact on the CBD industry in Europe, which is losing market share compared to other regions such as the US and Canada, due to the fragmented and inadequate legal framework."

The consultant also stated that the Court's decision would set a binding precedent at the European level, not only requiring France to adapt its legislation to allow the marketing of CBD extracted from the whole hemp plant, but also could force other national regulators to (re)examine existing restrictions related to hemp-derived products in light of the free movement of goods in the EU.

"The Advocate General's opinion is therefore a crucial step towards the necessary regulatory harmonization and legal certainty for the CBD industry in Europe. Furthermore, clear and proportional regulation of CBD-based products will ultimately benefit EU consumers."

The Court's decision is expected to be delivered starting from September 2020. In the vast majority of cases, the Court follows the Advocate General's opinion.

Lack of clarity

Antonin Cohen, co-director of Kanavape, said: "When we launched our product in 2014, CBD was unknown. Our goal has always been to market a useful and legal product, and we conducted a legal analysis to validate CBD compliance. The duration of these proceedings - over five years - and the referral to the CJEU demonstrate the lack of clarity in current regulations and the need to provide a clear framework for the production and use of CBD in France and Europe."

Cohen stated that, from a personal standpoint, this opinion is a true relief. "It is very difficult to fight these legal challenges for so long, but I have taken this approach because it is vital to create clear regulations to protect consumer health and support the competitiveness of French and European companies in a rapidly growing global sector."