The opinion (which is not yet set by the EC but appears to be the way the organisation is thinking) is based on a literal reading of the 1961 UN Narcotics Convention.
There are two aspects to this: 1. CBD could be construed as a cannabis extract/tincture and 2. the growing of hemp for the purposes of extracting CBD could be considered to fall outside of the specified exclusions – for industrial purposes (fibre and seed) or horticultural purposes.
For the first point, the 1961 convention does not specifically define what an extract or tincture is meant to be. And because CBD as a cannabinoid was not isolated and established as a cannabinoid at the time, the EC believes it could be considered an extract or tincture.
This takes a very literal reading of the document and many would argue that it is clear the spirit of the 1961 Convention was to tackle psychoactive cannabinoids – in particular THC. However as the Convention does not specify this, it remains open to interpretation.
The second point is potentially more challenging. Once again a literal reading of the convention would suggest that the only reasons cannabis (in this case low-THC cannabis or hemp) can be grown are industrial (defined as for fibre and seed) or horticultural (undefined in the Convention and described as of little importance in the Commentary on the Convention but thought to refer to the use of hemp as a border guard in things like beet cultivation, as outlined in German regulations, where it is meant to be destroyed before it flowers).
A strict interpretation would suggest that CBD extraction does not fit either of those exemptions. This is what the International Narcotics Control Board (INCB) did in its recent opinion to the World Health Organization (WHO).
Meanwhile, the attorney general of the European Courts of Justice (CJEU) in the recent Kanavape ruling essentially concluded that – as growing hemp for CBD was not considered growing hemp for the purpose of producing a narcotic (THC), given the low amounts of THC present – the Convention did not apply.
However, the Convention does not contain any language saying that simply because something is not grown for the purpose of producing a narcotic, the rules do not apply. It is meant to be a regulation on cannabis in general and this could be a weak point.
Altogether it does seem like the idea behind the Convention would not have been to label CBD a narcotic. And that is why there are measures proposed to modify the text. But as things currently stand, there are reasons why the EC is leaning in the direction it is – even if some may think it is taking a literal or overly pedantic interpretation.
Feel free to submit your questions for our next blog post*
*Under CBD-Intel’s editorial discretion