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How important is the CJEU decision on the Kanavape case?
The judgement in favour of CBD from the Courts of Justice of the European Union (CJEU) will almost certainly have significant long-term consequences for the CBD industry in Europe.
It will likely influence the European Commission (EC)’s further assessment of the question of whether CBD is a narcotic. The preliminary opinion that the EC did consider CBD a narcotic was largely built on a literal reading of the UN 1961 Single Convention on Narcotic Drugs.
The CJEU opinion specifically addressed this saying: “While it is true that a literal interpretation of the latter might lead to its being classified as a drug, in so far as it is a cannabis extract, such an interpretation would be contrary to the general spirit of that convention and to its objective of protecting ‘the health and welfare of mankind’.”
The EC had previously told CBD-Intel that it considered the CJEU’s opinion in this regard to be important. It will likely influence future EC thinking on the issue.
If that is the case, then the pause on novel food applications is likely to end and the use of CBD in foods would eventually once again be fully legal (once companies had secured the necessary novel food approval to meet EU member state enforcement of suggested guidelines on the matter).
The ruling may also have deeper consequences for the CBD industry in Europe. For example, currently only synthetic cannabinoids are allowed in cosmetic products as CBD extracted from plants has until now been considered a narcotic under the terms of international conventions. This ruling could lead to a change in that regard.
Further interdictions on the use of flowers in extraction could potentially also be influenced by the court decision – though more assessment will have to be done before a more definitive answer on that question.
Meanwhile, the CJEU’s added opinion that it would be difficult to justify national CBD bans on public health grounds also provides some more security for the industry going forward. The CJEU said a ban on hemp-derived CBD would not include synthetic CBD as the chemical compound on its own has been widely found to have no harmful effects. This means it would be impossible for a country such as France to consistently obtain the objective of protecting public health as the one source of the compound would still be permitted while the other was prohibited.
It added that a country could choose a different route as it does not have to prove the dangerous property of CBD is identical to that of certain narcotic drugs. In such a case, however, it would still have to demonstrate that a concern was not simply hypothetical by pointing to supporting available scientific data showing a real risk to public health.
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