European Commission commentary on French CBD rules raises wider questions

Questions on European policies banning flowers and outlining permitted THC levels in food ingredients have been raised by a commentary from the European Commission (EC) to a French proposal to regulate hemp products.

The EC has queried a number of clauses in France’s new proposed rules for CBD that were sent to the Commission in draft form for comment in July. In particular, the EC has queried French proposals to allow up to 0.2% THC in ingestible end products, the breadth of a blanket ban on flowers and leaves for consumers, the specificity of the country’s definition of hemp extracts, and its exclusion of regulations relating to the novel food status of cannabinoids.

Referring to scientific advice from the European Food Safety Authority (EFSA), the EC questioned whether a 0.2% THC limit in ingestible products might pose an unacceptable risk to human health and asked French authorities to justify the proposed level in their regulations.

The EC also pointed out that French authorities had not made any reference to novel food guidance in their regulations and asked that France’s proposed rule reflect the fact that there are no cannabinoid novel food authorisations at this point in time.

The small number of applications granted initial validation may support a strong stance on THC in ingestible products by the EC. Thus far it is synthetic CBD isolate applications that would be completely free of THC which have passed initial validity and moved on to assessment.


A blanket ban on flowers


Meanwhile the EC has also questioned the blanket ban on the sale of flowers to consumers proposed in France’s draft rule.

The draft decree states: “The sale to consumers of flowers or raw leaves in all their forms, alone or in combination with other ingredients, such as smoking products, herbal teas or potpourri, their possession by consumers and their consumption are prohibited.”

The EC responded to the ban by stating: “It is not impossible that some of the products that would fall within the scope of application of this prohibition are considered foodstuffs in accordance with the definition of Article 2 of Regulation (EC) No 178/2002, taking into account that the exclusion from this definition referred to in the third paragraph, point g of that article covers only narcotic drugs or psychotropic substances within the meaning of the Single United Nations Convention on Narcotic Drugs 1961 and the United Nations Convention on the Psychotropic Substances of 1971.”

The EC then asked French authorities to specify the reasoning for issuing the ban.


More clarity needed on hemp extracts


The EC also wants French authorities to be more specific about hemp extracts and to specify if this term only applies to products being chemically extracted or all derivative products from hemp.

Although the language of only seeking clarification used by the EC could be construed to be passive, it really should be viewed as a criticism of the French government’s decree writing, according to Yann Bisiou, a law professor and counsellor for CBD industry associations.

“It’s a political sanction for French government,” he told CBD-Intel. “Since I’m a teacher, it is equivalent to give a 30/100 grade to a student. In a bureaucratic language, you cannot be meaner than telling someone to clarify.”

Overall, the query is an initial setback, which some in the industry think could be very significant for its chances going forward.

“If French officials are smart enough, they will abandon their draft decree, knowing that they’re about to receive a new setback. If the decree is published, we’ll file a legal recourse before an administrative jurisdiction, and we’ll win”, warns Aurélien Delecroix, president of the Professional Syndicate of Hemp (Syndicat Professionnel du Chanvre).


What This Means: At the moment, the understanding of the EC’s position is only drawn from a communication document and not officially published policy. It is also only asking questions of French authorities rather than stating definitively what the EC believes to be the correct interpretation of current regulations.

Nonetheless, it could represent a significant revelation for hemp flower in the EU. One interpretation of the EC’s comments could be that the EC believes that member states cannot ban the marketing of hemp flower – an extension of the Court of Justice of the EU’s reasoning in the Kanavape case.

Another interpretation of the comments could be that the EC merely does not want member states to limit what could eventually be approved as novel food.

It is now up to French authorities to justify their proposals. They will have to show some public health justification to ban hemp flower products (which under Kanavape interpretation requires strong justification to show it is the most proportionate response) or that it impacts the “public morality, public policy or public security”, in addition to public health as outlined in Article 36 of the Treaty on the Functioning of the European Union.

However, it should be noted that an EC interpretation leading to a strict limit on the presence of THC in ingestible products could end up severely limiting the potential CBD and cannabinoid market in the EU.

 Benjamin Boukriche CBD-Intel contributing writer

Photo: Chris Karidis

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