What implications can the industry draw from the recent Court of Justice of the European Union (CJEU) opinion in the ongoing French Kanavape case?

France cannot stop the import of full spectrum CBD oils extracted from any part of the plant, including flowers, from other EU member states UNLESS it has scientifically established that CBD has psychotropic or toxic effects, and considered whether there were no alternative less-burdensome regulation to an outright ban, according to the opinion from the advocate general of the CJEU, Evgeni Tanchev, that was published yesterday.

In sum, French authorities need to adequately assess the risk of use of CBD oil in electronic cigarettes using reliable scientific data and the most recent research, according to the advocate general of the CJEU.

The opinion could have implications on the source from which CBD is derived (i.e. flowers) and the legality of measures restricting its sale across all EU states. The opinion states that CBD oil cannot be regarded as raw hemp or as a primary processing product of hemp. This means that it is an extract and cannot be considered an agricultural product where different rules would apply.

It further states that national regulations prohibiting the import of CBD oil when it is extracted from the entire hemp plant – and in particular its leaves and flowers – must be regarded as having “equivalent effect” as defined under Article 34 of the Treaty on the Functioning of the European Union  (TFEU).

In essence, Article 34 prohibits duties and other restrictions with an equivalent effect that inhibit the free movement of goods within the EU. Tanchev considers national prohibitions based on CBD being extracted from the whole plant including flowers and leaves to be such a restriction.

This is because the rules essentially make it impossible to import CBD oil into France since – as the French government said itself at the hearing – it is technically difficult, and almost impossible at a commercially viable level, to produce CBD from the rest of the plant, such as fibres, roots and seeds.

EU rules permit the enacting of regulations inhibiting free movement of goods that pursue objectives of general interest, such as protecting public health. However the CJEU’s advocate general disputed the French government’s allegations that there was a risk that CBD oil would have harmful effects and said that the government had not clearly identified them much less carried out an exhaustive assessment of health risk.

It is ultimately up to the referring court in France however, the advocate general said, to ensure that France’s authorities provide enough evidence of possible harmful effects and, if such a risk exists, that the legislation at issue in the main proceedings does not go beyond what is necessary for the protection of human health.

Tanchev has instead recommended that, unless sufficient evidence is provided, the French take a less restrictive approach to regulating CBD. For example, limits could be set on the content of CBD in products instead of a full ban.

The opinion of the advocate general is in itself not binding. However, the CJEU follows the opinion given in the vast majority of cases.

A full decision on the issue would generally be expected in a few weeks. However, there have been significant delays due to the ongoing pandemic in the delivery of this opinion – originally expected at the end of March. For those reasons, it is very difficult to say with any degree of certainty when the full judgement will be rendered.

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