In a long-awaited ruling, the European Court of Justice (ECJ) clarified that the cannabis active ingredient Cannabidiol (CBD) is not to be classified as a narcotic.

France submits question on CBD in e-cigarettes

The ECJ decision is based on a question referred by the Court of Appeal of Aix-en-Provence concerning the marketing in France of an electronic cigarette containing CBD. The Criminal Court in Marseilles had convicted the company directors on the grounds that CBD oil contained in the cigarette was extracted from the entire hemp plant, including leaves and flowers. French law only permits the commercial use of hemp fibres and seeds.

The French Court of Appeal referred the question to the ECJ whether these national rules were compatible with the principles of the free movement of goods.

No narcotic, free movement of CBD products must be observed

The ECJ reaffirmed its earlier case law that narcotics are not covered by the free movement of goods, except for strictly controlled trade for medical and scientific purposes.

In the present case, however, the ECJ held that the principles of free movement of goods were applicable since CBD is not classified as a narcotic within the meaning of the 1961 United Nations Single Convention on Narcotic Drugs. Based on the documents before the Court and available scientific data, the ECJ ruled there was no evidence that CBD had psychotropic and harmful effects on human health.

The rules on free movement of goods therefore preclude national legislation prohibiting the marketing of CBD lawfully produced in another EU member state if the CBD is obtained from the whole Cannabis Sativa plant.

Restriction of free movement of goods in case of health risks must be based on up-to-date scientific data

Free movement of goods can be restricted only if national legislation is appropriate in protecting public health and does not go beyond what is necessary to attain this objective.

According to the ECJ's guidance on when a ban can be justified for the purpose of protecting public health, a comprehensive assessment of health risks is required based on reliable scientific data and the latest results of international research.

A member state does not need to prove that the dangerous nature of CBD is identical to that of narcotics. The courts of member states must assess the scientific data available in order to ascertain whether the actual risk to public health claimed is based on research or on purely hypothetical considerations.

Will an amendment to the UN Single Convention also be forthcoming?

In 2019, the WHO recommended that the UN change the classification of cannabis in the UN Single Convention, which the CBD industry is eagerly awaiting.

Currently, the UN Convention lists cannabis in the same risk category as cocaine and heroin. A WHO scientific working group had previously examined the risks of cannabis, THC and CBD and concluded that these risks did not justify the present classification. Moreover, given the accepted medical benefits of cannabis, the WHO is recommending that cannabis and cannabis resin be reclassified in the lowest risk category.

The WHO also recommends that THC should be deleted from the 1971 Convention on Psychotropic Substances and be included in the lowest risk category of the UN Single Convention on Narcotic Drugs and that preparations with CBD containing less than 0.2% THC should be explicitly excluded from the UN Convention.

After several postponements, the UN will vote on the reclassification of cannabis in December 2020.