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European Court finds that CBD is not a narcotic

Posted on 25 November 2020

The European Court of Justice has ruled that a particular form of cannabidiol (CBD), derived from industrial hemp, is not a narcotic as “it does not appear to have any psychotropic effect or any harmful effect on human health”. This judgment, from the EU's highest court, is undoubtedly positive for the CBD industry which has, for some time, faced questions from regulators about CBD's effects on human health.

In particular, the judgment could assist in improving the current complex, and often contradictory, legal framework for manufacturing and selling CBD products. In the UK, for example, a Home Office licence is required to grow and manufacture CBD and yet there are numerous CBD products on sale to consumers, with little enforcement action by the relevant authorities. We await how regulators, such as the European Food Safety Authority, will interpret this decision and whether the European Commission will now continue with the Novel Food applications which it had previously paused, pending its own decision as to whether to classify CBD as a narcotic. 

The ruling was made in relation to the sale of KanaVape, a CBD electronic cigarette, in France. The requirement for scientific evidence as to CBD's safety was a key theme throughout the judgment, in which the Court found that "since CBD does not contain a psychoactive ingredient in the current state of scientific knowledge" it cannot be categorised as a narcotic and "a decision to prohibit marketing….can be adopted only if the real risk alleged for public health appears sufficiently established on the basis of the latest scientific data available at the date of the adoption of such a decision." Furthermore, any decision taken on CBD "must assess available scientific data in order to make sure that the real risk to public health alleged does not appear to be based on purely hypothetical considerations".

Whilst this finding is cause for some cautious optimism from the CBD industry, it is unlikely to signal the end of regulatory interest in CBD products, and a level of caution should be exercised by the industry. There exists little evidence of CBD being harmful for human health at the point of consumption, however there does remain uncertainty over its long term effects (including the impact of varying dosages on human health). For example, there are many reports regarding CBD's alleged effect on liver function and numerous CBD companies are collaborating to investigate this, amongst other concerns, for the US' Food and Drug Administration. The judgement also demonstrates a subtly different, and possibly more business friendly, approach to that which regulators have been taking to date. So far regulators, such as those in the US, have been demanding evidence that CBD products are safe for human consumption, whereas the European Court of Justice has concluded that CBD should not be banned as there is no evidence to show that it is dangerous.

However, the European Court of Justice noted that "the CBD at issue in the main proceedings does not appear to have any psychotropic effect or any harmful effect on human health on the basis of available scientific data". As CBD products all have different compositions, it is possible that another CBD product may not have enjoyed the same outcome and so the safety of each CBD product should continue to be considered on a case-by-case basis. 

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