The Conseil d’État has annulled the order of 30 December 2021 prohibiting the sale of cannabis flowers and leaves with THC (tetrahydrocannabinol) content below 0.3%. It noted that CBD (cannabidiol), which does not alter consciousness and is not addictive, cannot be considered a narcotic product. It held that there is no evidence that the consumption of flowers and leaves of these cannabis varieties with a low THC content entails any public health risks. As a result, it found the general and absolute prohibition of their marketing unlawful.
The French Public Health Code (article R. 5132-86) prohibits the production, marketing, holding, purchase or sale of cannabis (plant, resin and derivative products). But it also provides that the “growing, import, export and industrial or commercial use of cannabis varieties with no narcotic effects” may be permitted.
On the basis of that provision, an inter-ministerial order of 30 December 2021 had authorised the use of flowers and leaves of cannabis varieties with a delta-9-tetrahydrocannabinol (THC) content below or equal to 0.3%, for the production of extracts not exceeding that content value. But the order also prohibited the sale of the unprocessed flowers and leaves of the same varieties to consumers, regardless of the form in the finished product (tea, oil, CBD-based cosmetics etc.)
In early 2022, the matter was submitted to the urgent applications judge of the Conseil d’État, who suspended the enforcement of the ban in an order of 24 January 2022. The Conseil d’État has now ruled on the merits of the case and found that the general and absolute prohibition of the marketing of unprocessed leaves and flowers of low-THC cannabis, i.e. cannabis without narcotic properties, is disproportionate. As a result, it annulled the prohibition set by the order of 30 December 2021.
CBD does not alter consciousness or lead to addiction
The examination of the merits by the Conseil d’État demonstrated that CBD and THC content varies significantly between different cannabis varieties. The two substances, CBD and THC, are the main plant cannabinoids that are essentially concentrated in the flowers and leaves of cannabis, but their effects are very different. The scientific data put forward by the parties showed that CBD has relaxing properties and anti-convulsive effects, but has no psychoactive effect and does not lead to addiction, unlike THC. There are, therefore, varieties of cannabis with a low THC content, which cannot be considered to be narcotics.
CBD does not create a public health risk that would justify a general and absolute prohibition
While ruling on the lawfulness of the prohibiting order, the Conseil d’État first stated that such a prohibition must be justified in view of the public health goal pursued and be proportional with the health risks posed by the regulated substances.
It held that health risks depend on the quantities of THC actually ingested depending on the products consumed and the consumption methods. In view of the scientific data, it found that the harmfulness of the other molecules present in cannabis flowers and leaves, particularly CBD, is not established.
Based on the scientific evidence reviewed, it concluded that the consumption of the leaves and flowers of cannabis varieties with a THC content below 0.3% does not create a public health risk that would justify a general and absolute prohibition of their marketing.
Tests are available to differentiate between varieties of cannabis
In addition, to justify the marketing prohibition, the ministry for solidarity and health had contended that the circulation of flowers and leaves of cannabis varieties with no narcotic effects compromised the effectiveness of the policy of combating the use of narcotics, as a result of their similarity to the flowers and leaves of varieties that do have narcotic effects.
However, the Conseil d’État found that the THC content of flowers and leaves could be tested with quick and inexpensive methods for identifying varieties with narcotic properties. The Conseil d’État, therefore, found that the effectiveness of the policy to combat the use of narcotics could not justify the prohibition of the marketing of unprocessed cannabis flowers and leaves with a THC content below 0.3%.