Court of Cassation ruling spreads more confusion over French legal position

The highest court in France has issued a ruling confirming the decision made by the EU Court of Justice (CJEU) in the so-called Kanavape case but the decision has contributed to ongoing uncertainty over the precise legality of hemp-derived cannabinoids in the country, as it appears to differ from regulations put forward by the Ministry of Justic.

The Court of Cassation – the court of last resort in France, equivalent to the Supreme Court in many other countries – made a decision earlier this year clarifying the legal status of CBD in a case between a retailer and a public prosecutor that had accused him of selling narcotics.

Judge Christophe Soulard confirmed that, as determined in the CJEU’s Kanavape ruling, the products seized were hemp flowers legally grown in an EU member state within allowable THC levels and thus had to be legal to sell in France.

The Court of Cassation also ruled on two other similar cases in June. In one a tobacco shop owner was convicted for selling hemp flowers. After the case reached the Court of Cassation, the court ruled that French justice must follow the Kanavape ruling.

In the other, a CBD shop owner was convicted of selling “hashish and cannabis containing CBD” but the Court of Cassation overturned the conviction because “banning, even temporarily, commerce of CBD products cannot be done without proof that the products are controlled substances”.

 

Waiting for judgement

 

But this has not fully clarified the status of CBD products in France. The Ministry of Justice still says that a THC level of 0.2% only applies to the hemp plant when cultivated and does not provide a legal threshold for THC in finished products. As a result, it must be considered a scheduled substance unless it has zero THC.

Yet the products being ruled on in these Court of Cassation decisions – in particular hemp flowers – do not have zero THC and must be permitted, as the Court of Cassation says, because of the CJEU’s ruling.

As a result, the overall status of CBD remains unclear for Yann Bisiou, a long-time cannabinoid law expert in France. “I’m waiting for the next court judgement about CBD flowers in a few weeks,” Bisiou added.

Enforcement also remains inconsistent, with some police and customs officers unsure of the implications of the Kanavape ruling. Ingrid Metton, a solicitor for more than a dozen CBD shops, said that customs continue to enforce solely on THC level without taking country of origin into consideration. The Kanavape decision should mean that legally produced EU hemp products should be permitted.

“Regardless if it’s flowers, edibles or oils, they don’t ask about origin; they only look at the THC level,” Metton said. “To me, customs obviously know the court’s decision, but their bosses have told them to seize the products.”

 

More battles ahead?

 

It has also led to further burdens on retailers. David Aran, owner of a 145 shop franchises told CBD-Intel that he still gets a lot of questions from the police.

“They asked me to deliver a certificate proving that all my products are European,” he said. “I think it is related to the court’s judgements.”

The decree being drafted by the French government is intended to bring some clarity to these issues. But its proposal to continue banning flowers could lead to further confusion and will invite further legal challenges from the industry.

“Then we would be starting over, with another year or two of legal battles ahead,” Bisiou said.

Benjamin Boukriche CBD-Intel contributing writer

Photo: Rodrigo Kugnharski

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