European case law on CBD

The Court of Justice of the European Union has recently concluded that CBD (cannabidiol) extracted from Cannabis sativa cannot be regarded as a ‘narcotic drug’ because it does not appear to have any psychotropic effect or any harmful effect on human health on the basis of available scientific data.

This judgement of 19 November 2020 (Case C‑663/18) follows a request of preliminary ruling concerning the French legislation limiting the industrialisation and marketing of hemp solely to fibre and seeds. In France, there is indeed a national restriction which goes further than European regulations: the Law of 22 August 1990 only authorizes the cultivation, import, export and industrial and commercial use of fibers and seeds of Cannabis sativa L varieties authorized at European level. The use of flowers or leaves is therefore strictly forbidden in France. 

This judgement is not specific for foods, and it would not change the fact that CBD (from Cannabis sativa or synthetic) is considered as a Novel food according to Regulation (EU) 2015/2283, and that CBD could be used in food only with a specific authorisation granted according Regulation (EU) 2015/2283.

Several applications for authorisation as a novel food for CBD (from Cannabis sativa or synthetic) for use in food supplements have been submitted to date for assessment by EFSA and the European Commission. However the applications concerning CBD extracted from Cannabis sativa are blocked since July 2020 because of a Commission’s preliminary view that CBD extracted from the flowering and fruiting tops of the hemp plant is covered by Schedule I of the Narcotics Convention (i.e. ‘extracts and tinctures of cannabis’).

Concretely this recent opinion from the Court of Justice of the European Union should be a good argument for the European Commission to review its preliminary view and to accept to send the applications concerning CBD extracted from Cannabis sativa to EFSA for scientific assessment.