Legal or not CBD flower: the regulatory point
Written on 16/05/2022 Currently, the sale of CBD flowers is permitted. Or rather, it is not prohibited. Let’s take a closer look at the legal battle between the government, the constitutional council, and its impact on the CBD sector.
EU: European Legislation on CBD Flower
On November 19, 2020, the Court of Justice of the European Union (CJEU) widely clarified its positions in thestop Kanavape, involving the e-liquid mark to the eponymous CBD, this CBD being from the Czech Republic. Recalling the context, French law, European law and the methods of application of the fight against cannabis, the Court expresses several major ideas:
- CBD is not amazing product, unlike THC-containing cannabis
“To the extent that the THC rate in hemp marketed legally in other Member States is less than 0.3%, as in the main case, CBD cannot be described as “stupid”
- CBD is not dangerous for its consumers. The precautionary principle is therefore not applicable.
“The CBD does not appear to have a psychotropic effect and harmful effect on human health on the basis of available scientific data” “A correct application of the precautionary principle presupposes, in the first place, the identification of potentially negative consequences for the health of the proposed use of the product” “The risk assessment cannot be based on purely hypothetical considerations (U.S. decision, January 28, 2010, Commission/France). »
- I mean, the prohibition of its commercialization constitutes a barrier to free trade european input:
“A decision to ban commercialization, which is, in fact, the most restrictive entry into trade in products legally manufactured and marketed in other Member States, can only be adopted if the alleged real risk to public health appears to be sufficiently established.” It is therefore forbidden to prohibit the sale of cBD flowers in European Union countries, except by demonstrating, through scientific data, its danger to the user or if the THC rate of the flower exceeds the legal threshold of 0.3%. Obviously, cannabis containing THC (psychoactive substance to addictive and harmful health effects) remains prohibited. The decision of the CJEU emphasizes the difference between CBD and THC throughout the processing of the dispute. 
Flower of CBD France: a legal battle
In 2020, almost 46% of French people had already consumed cannabis in France and half of them would be in favour of its decriminalization. Yet, the government sees in a very bad eye the consumption of weed, which is ultimately far from being anodine. Traffic in narcotics and, above all, road accidents lead to many deaths and preventable accidents every year. CBD's flower is known for its beneficial effects, without feeling high or hallucination, unlike weed. It is even used as part of cannabic debris, because it shares the same aromas of unlegalized sativa cannabis flowers, the side effects in less, allowing a smooth transition to the complete stop of dependence. The question then arises: Is it better to legalize CBD in order to propose a healthier alternative to cannabis or rather penalize anything that resembles, almost or far, a flower of Indian hemp?
Stopped from 30/12/2021 : forbidden CBD flower?
Considered by the government as a "cannabis light", the CBD is struck by a ban. On 31 December 2021, the Official Journal announced new arrest applying section R. 5132-86 of the Public Health Code. It states: "In particular, the sale to consumers of flowers or raw leaves in all their forms, including varieties of Cannabis sativa L. without THC, so CBD flowers. The main reasons are:
- The difficulty for law enforcement forces to differentiate CBD flowers and cannabis flowers, when agents are not equipped with appropriate detectors
- Self-medication to CBD without medical notice, even though a therapeutic cannabis experiment is under way until 2023, supervised by a scientific committee
- The potential health risks of cannabinoid-based products
CBD flowers were therefore classified as narcotics and prohibited for sale in France. But then, why do cbd shop like Le Lab Shop still sell it today? Are they within the framework of French law?
Conseil d’État et acteurs du CBD : la filière de chanvriers contre-attack
In the face of this decree, which is deemed to be abusive, the hemp sector has seized the Constitutional Council. At present, under the European law and the very hypothetical nature of the health risks that would result in the consumption of CBD flowers, the Referee judge decided to suspend the decision of 30/12/2021. On Friday, 11 February 2022, the Constitutional Council considered that the current texts of the Penal Code were in conformity with the Constitution: CBD flowers may, or may not, be classified as narcotics. Now directs the Department of Health and the National Medical Safety Agency to decide on this classification. The months to come will be decisive to find out whether CBD flowers remain legal in France. And it is still possible that the European Union considers its abusive prohibition, in which case European law prevails over national law. Currently, in the regulatory framework of 16/05/2022, CBD flowers are tolerated for sale and consumption, provided that they are not smoked or marketed as a pharmaceutical product.