As there was no dispute between the parties that measures taken under French national legislation could be caught by the principles of freedom of movement of goods, the Court considered whether the measures were justified. The French authorities had prohibited the sale of CBD products coming from a whole-plant source on grounds of public health, but had done so in the absence of clear evidence that CBD would harm human health. The CJEU also highlighted the fact that the French legislation prohibiting the marketing of CBD would not affect synthetic CBD (even where synthetic CBD would have the same properties as CBD extracted from a natural whole-plant hemp source). This fact suggested that the French prohibition was unjustified in achieving the grounds of protecting human health, although this was ultimately a matter for the national court to determine.
The CJEU's judgment in Kanavape will have significant ramifications for the CBD and cannabis industry at large. The issue of whether CBD should come from the seed and fibres of the plant was viewed by producers as an unfair and artificial requirement, given the cannabinoid itself is not known to induce psychotropic effects or cause harm to human health. Most companies will have struggled to comply with a requirement to only extract CBD from the non-flowering parts of the plant given that CBD is in fact largely contained in the flowers and leaves. The manufacture of CBD using only the seeds and fibre parts of the plant therefore never made commercial sense for producers of naturally-occurring CBD.
On 19 November 2020, the CJEU held that the EU rules on the free movement of goods (Articles 34 and 36 TFEU) preclude Member States from prohibiting the sale of CBD. The Court found that such a measure would amount to a quantitative restriction on imports between Member States. The Court reminded the parties that Member States can only take measures to prohibit the sale of goods against the principle in Article 34 TFEU where such restrictions can be justified on grounds of public interest (such as the protection of life) as set out in Article 36 TFEU. Furthermore, such measures must be proportional and appropriate to the ground being relied upon and must be interpreted narrowly.
Judgment of the CJEU – CBD classified as "not a drug"
Reference of the Cour d’appel d’Aix-en-Provence
The Court of Appeal of Aix-en-Provence queried whether the provisions of the French Public Health Code which prohibit the use of the leaves and flowers of hemp plants, are incompatible with EU law and referred the issue to the CJEU.
Catlab SAS (Catlab), a company formed in 2014 sought to market various CBD-based products in France including Kanavape, an electronic cigarette, the liquid of which contains CBD. The CBD used in Kanavape was produced in the Czech Republic using the whole of the Cannabis sativa plant, and was imported into France by Catlab, who packaged it in cartridges for electronic cigarettes. The French health regulator, the Agence Nationale de Sécurité du Médicament et des Produits de Santé (ANSM), started an inquiry into Catlab's products. It found that the products were within the acceptable thresholds for tetrahydrocannabinol (THC), although there were variances in the level of CBD detected. The ANSM stated that it did not consider Kanavape to be a "medicinal product" and subsequently the former directors of Catlab were prosecuted for various infringements of French law, including against rules for the sale of poisonous substances.
Kanavape are an innovative brand and they created the first electronic cigarette, so that gives them a lot of kudos if you ask us! Their starter kits are a great choice if you’re a beginner, and just starting to use hemp oils. Easy to use and designed specifically to give you a CBD-rich experience.
The Kanavape CBD oils for vaping are made in the EU and are created from certified organic hemp to give you the ultimate flavour experience. They’re a real bang for your buck and the potency is tested multiple times so you can buy in total confidence. On average, you can expert 200 hits of vapour from each cartridge.
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