French Court of Cassation rules in favour of CBD sales

. About a week after a first decision in the case of the reopening of a shop in Dijon (Côte-d'Or), the highest French court has this time issued a general ruling on the marketing of CBD, a substance derived from cannabis, which however has no harmful effect on health. We explain everything in detail.

1 - What is CBD?

CBD is short for cannabidiol, a substance derived from hemp, which is a variety of cannabis. It is very important to differentiate between the THC and CBD molecules. Tetrahydrocannabinol (THC), also present in cannabis, is recognized as a psychotropic drug, which acts on the brain rhythm and the psyche, unlike its cousin, CBD. THC is therefore considered a narcotic product, unlike CBD. As the Court of Justice of the European Union reminds us, CBD does not cause "of psychotropic effect and of harmful effect on human health on the basis of available scientific data". It is therefore not classified as a narcotic by the European justice.

2 - What about legality in France?

Cannabis is clearly not legal in France, but CBD is only a molecule present in cannabis, so its status is different. Indeed, no scientific study has proven that CBD can have harmful consequences on the health of consumers. On the contrary, it has been proven that CBD can help reduce certain pains and conditions in certain types of sick people. Thus, French law does not consider it a narcotic, only under three conditions:

• if the plant from which it is derived is from one of the varieties of cannabis "Sativa L." authorized in France;
• if only the fibres and seeds of the plant are used
• if the substance contains less than 0.2% of THC, as recalled in a circular issued by the Ministry of Justice on 23 July 2018.

For a few years now, CBD shops have been springing up all over France, with dozens of different products marketed and sold to adults: oils, vaping liquids, herbal teas, honey and even chocolate bars or candy. This totally legal market is the background of more than 300 establishments in France, as reported last December by the newspaper The World.

3 - If it is legal, why did CBD end up in court?

To understand this legal story, we have to go back to 2016. At that time the company Catlab, based in Marseille, was accused of illegal trade in narcotics. Indeed, the CBD it imported from the Czech Republic, another EU member state, was not derived from the fibres and seeds of the hemp plant, but from another part of the plant. 

The two managers of Catlab were prosecuted, and then sentenced to 18 and 15 months suspended prison terms and a €10,000 fine each, by the Marseilles criminal court in January 2018. On appeal, the judges decided to check with European justice whether the French texts in force were compliant.

4 - What was the response of the European justice?

The Court of Justice of the European Union was therefore seized and looked into the matter, bringing a slap in the face to France. In November 2020, the court told Paris and the government that while the country remains free to regulate the production of CBD on its soil, it cannot consider as illegal the sale of CBD from another country of the European Union, even if produced under different conditions. This is true if the final product is legally manufactured in the country of origin, and of course respects the authorized levels.

Not allowing the sale of CBD products legally manufactured in a member state therefore constitutes an obstacle to the free movement of goods, as the CJEU pointed out in its judgment. Furthermore, it recalls that CBD from the whole plant is a non-narcotic substance in Europe. It is therefore impossible to limit the sale of CBD to products made from CBD fibres and seeds, as required by French law. 

5 - What was the conclusion of the Court of Cassation? 

In a ruling "of general application" made public on June 23, the Court of Cassation therefore followed the decision of the European justice. In its eyes, the sale of CBD is legal in France. Even if it does not meet the three criteria set by French law, as long as the CBD marketed was produced in the European Union according to the rules set by the European justice, the sale remains legal. This decision was greeted with a sigh of relief for hundreds of traders who were nervously awaiting the verdict.

France's highest court had already issued a first ruling on June 15 of that year in which it ruled in favor of a Dijon-based shop, which should not have been preemptively closed in the summer of 2018 by the authorities for selling CBD.

However, the legality of CBD does not in any way mean an easing of the repression of cannabis use or a first step towards its legalization.