Mieux Vaut Tard Que Jamais- France Approves CBD Sales but Prohibits Hemp Flower
With a population of almost 65,500,0000, France is the third largest country in Europe behind Germany and the UK. It ranks similarly in economics with a GDP of 2.6 trillion as measured in US dollars. For these reasons, not to mention its outsized cultural impact and its central location in western Europe, the recent announcement of a liberalization of the French law governing hemp by the Ministry of Solidarity and Health (MSH) on December 30, 2021 should be applauded by both the French and the international hemp industry.
To be fair, the new French law has problems, and France has not been a progressive actor in updating its hemp laws. The new law prohibits hemp flower, a topic I will address below. Moreover, France came to the hemp party unwillingly. It was forced to do so in November 2020 by the Court of Justice of the European Union (CJEU), which ruled on behalf of defendants in a case involving CBD company KanaVape that EU Member States may not ban the marketing of cannabidiol (CBD), even when it is extracted from hemp flowers and leaves. A year later, in November 2021, the French Court of Appeals of Aix-en-Provence confirmed the CJEU ruling. A month later, on December 30, 2021, the MSH released its announcement of a formal change in French law regarding hemp cultivation and commercialization, which you can read below.
The new French law authorizes “the cultivation, import, export and industrial and commercial use of only varieties of Cannabis sativa L., whose delta-9- tetrahydrocannabinol content is not more than 0.30% and which are included in the common catalogue of varieties of agricultural plant species or in the official catalogue of species and varieties of plants grown in France[.]” In other words, it uses the same standard for “hemp” as the US. Only “active farmers within the meaning of the current European and national regulations” may grow hemp. They may not sell seedlings or cuttings.
The law specifically allows for the use of hemp, including imported hemp, to create and commercialize hemp extracts provided that the delta-9 THC content of hemp extracts, and the products incorporating them, do not exceed 0.30%. Additionally, and though the decree does not mention it, any CBD products marketed as food are subject to the EU Novel Foods Directive, which we discuss here and here.
Importantly, the law expressly prohibits “the sale to consumers of flowers or raw leaves in all their forms, alone or in combination with other ingredients[.]” In other words, smoking hemp is unlawful in France. This is unfortunate since hemp flower is a primary market driver of the French hemp industry. The President of the Union des Professionals du CBD (UPCBD), Charles Moral, recently stated to Newsweed: “Flowers represent 70% of the turnover of our stores. So we can fear layoffs, closures …” On January 3, 2022, an emergency legal action was filed with the Council of State, the country’s highest administrative court, by participants in the hemp industry seeking to suspend the new decree. The idea that a favorable ruling will solve the industry’s immediate concerns is questionable since hemp flowers and leaves were already illegal to sell prior to the new law. However, this legal battle between the hemp industry and the government is similar to legal challenges to smokable hemp bans in the US, many of which have been successful. (To read our articles on smokable hemp bans in the US click here, here, here, here, and here.)
Despite the ban on hemp flowers and leaves, it is exciting to see these developments in the nascent French hemp and CBD industry. In addition to the smokable hemp issue, we anticipate that France will soon face many issues that we have seen in the US, including “total THC”, intoxicating hemp products, testing protocols, and intermediate hemp material and waste hemp material from processing, all of which we have been heavily involved, since the law only limits delta-9 THC concentrations.
Finally, I note that the French import and export market for hemp and hemp products is open. We consult hemp companies on international hemp laws and assist them with international transactions. France promises to be a big player and we are excited about these developments.
Here is a copy of the Decree as translated to English by Latham & Watkins:
January 5, 2022
Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp and CBD industry. Additionally, Rod speaks at cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the cannabis industry. You can contact him by clicking here.