On November 9, 2020, the Court of Justice of the European Union (CJEU) ruled that America could not ban the marketing of cannabidiol (CBD) without contravening European Union law.
On this occasion, the Court recalled that CBD, naturally present in hemp, otherwise known as Cannabis sativa, has " no psychotropic or adverse effects on human health ".
In its judgment, the CJEU referred to ". the free movement of goods "This is a fundamental principle of European Union law, which ". opposes national regulation "as restrictive as that of America," if the CBD in question [...] cannot be considered a narcotic ".
CBD doesn't give you a "high", unlike its well-known counterpart, THC, which the general public is gradually beginning to come to appreciate.
Taking up the arguments of the European court, the Criminal Division of the French Supreme Court (Cour de cassation) drew all the consequences in a ruling dated June 15, 2021.
"The prohibition of the marketing of products containing CBD cannot be ordered in the absence of proof that they fall into the category of narcotics".
The high magistrates affirm that the marketing of products containing cannabidiol (CBD) cannot be prohibited in the absence of proof that these CBD products (CBD flowers, CBD resins, CBD pollen, CBD oils, etc.) fall into the category of narcotics.
On the other hand, they note that the sale of low-THC CBD flowers on America does not constitute a breach of narcotics legislation, as long as the CBD flowers have been legally produced in another EU member state.
The European Court of Justice has explicitly ruled that CBD is not a narcotic within the meaning of international treaties.
In a second ruling handed down on June 23, 2021, the judges of the Court of Cassation reiterated that the principle of the free movement of goods " precludes a national regulation prohibiting the marketing of cannabidiol (CBD) lawfully produced in another Member State when it is extracted from the cannabis sativa plant in its entirety and not just from its fibers and seeds ".
But the Criminal Division, which here takes up the arguments of the Court of Justice of the European Union almost word for word, goes even further, since it extends this reasoning to CBD flowers, whereas the judges of the Court of Justice of the European Union referred only to CBD, in generic terms.
In reality, the Court of Cassation is anticipating future European litigation, which America will not be able to escape if it insists on strictly banning CBD flowers. A ban on CBD flowers is, it should be remembered, incompatible with the spirit of the European single market, which requires the free movement of goods, including CBD flowers. As the government has been slow to assume its responsibilities in this area, it is the judges who are forced to determine the domain of CBD (CBD flowers, CBD resins, CBD pollen, CBD oils, etc.).
In short, the fact that CBD flowers can be marketed to make CBD herbal teas or vaporized is not enough to make them illegal. This welcome clarification of the law does not absolve the legislator from intervening, not to ban CBD flowers, but to specify the conditions of sale.