Ask Our Experts: European Court of Justice Decision on CBD
Q: What are the takeaways from last week’s EU court ruling about CBD in France?
By Trevor Yahn-Grode, Data Analyst, New Frontier Data
A: That the Court of Justice of the European Union (CJEU) – the high court of the European Union (EU) – struck down a standing French ban on CBD products spurred instant and emphatic optimism among industry operators concerned whether the European Commission (EC) – the EU’s executive branch – would confirm classification of CBD as a narcotic.
While the 16-page decision is being positively appreciated throughout the industry, stakeholders nevertheless would do well to take cautious note that the European legal system can occasionally be bureaucratically fickle and Byzantine, especially regarding complex socioeconomic issues like cannabis policy.
The court ruled that CBD “extracted from the [entire] Cannabis sativa plant… and not solely from the seeds and leaves of that plant, to the exclusion of its flowering or fruiting tops” should not be considered a narcotic. To parse the CJEU’s opinion, however, it may be important to note that the court did not expressly rule that CBD should not be classified as a narcotic, but that CBD specifically derived from the entire plant (and not just the flowers and leaves) should not be considered a narcotic. It is a distinction somewhat analogous to the situation in the U.S., where CBD derived from marijuana plants remains federally prohibited, though CBD derived from hemp has been legalized nationwide – even though they are chemically identical.
Furthermore, the CJEU’s Kanavape decision leaves France with a narrow window to maintain its CBD ban if regulators “assess available scientific data” to show that “real risk to the public health alleged is not based on purely hypothetical considerations”.
Thus, while the industry prefers the CJEU’s stance to an alternative, it would be premature to place all bets on CBD’s future throughout the continent. Nevertheless, the potential payoff is more than substantial: New Frontier Data projects that collective spending for CBD throughout France could surpass €669 million EUR ($793 million USD) by 2025, and likewise more than €13.6 billion EUR ($16.1 billion USD) throughout all the EU member nations writ large.
Meantime, the legal tension stems from the 1961 United Nations (U.N.) Single Convention on Narcotic Drugs, from which nearly all national narcotic laws have been established. The CJEU stated that through a “literal interpretation” of the U.N. treaty, CBD could be considered a narcotic as an extract of cannabis, but explained that for its part the court considered CBD to be outside “the purpose and general spirit” of the treaty.
The EC’s forthcoming decision whether to make its preliminary decision permanent specifically addresses flower-derived CBD; whatever way the EC rules will hinge upon how literally it interprets the 1961 U.N. Single Convention.