Does This EU Law Make Hemp Flower Legal In The UK?

The debate surrounding the legality of hemp flower (CBD flower/bud) in the UK has been going on for a while now. 

Recently, it looked it might be settled when a number of raids were carried out on businesses selling hemp flower and a vape shop owner was prosecuted for supplying a class B drug. 

This saw most hemp flower vendors shut up shop in fear of police action. Particularly as rumours circulated of a country-wide police crackdown on hemp flower sellers and those who import the product into the country.  

However, it appears that prohibiting the sale of hemp flowers may be against an EU law that ensures the free movement of goods in Europe. 

The principle of mutual recognition

Mutual recognition is the principle of EU law under which member states must allow goods that are legally sold in another member state also to be sold in their own territory.

For the exporter, this means that a product legally on sale in one EU country should not have to meet a second set of requirements in the country to which they are exporting.

The law is not absolute, however. Exceptions can be made if there are “overriding reasons of public interest” (such as health and safety concerns). In these cases, the member state that is prohibiting the product must provide clear reasons why restrictions have been put in place. 

The law states as follows:

“(4) The principle of mutual recognition derives from the case-law of the Court of Justice of the European Union. According to this principle, Member States may not prohibit the sale on their territory of goods which are lawfully marketed in another Member State, even where those goods have been produced in accordance with different technical rules, including goods that are not the result of a manufacturing process.”

“Member States can restrict the marketing of goods that have been lawfully marketed in another Member State, where such restrictions are justified on the grounds set out in Article 36 TFEU or on the basis of other overriding reasons of public interest, recognised by the case-law of the Court of Justice of the European Union in relation to the free movement of goods, and where those restrictions are proportionate to the aim pursued. 

“This Regulation imposes the obligation to clearly justify why market access has been restricted or denied.”

Source: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32019R0515

French case goes to European Court of Justice

In France, there is an ongoing case against the two founders of Kanavape, a company that selles vape pens with CBD derived from hemp flower.

While it is illegal to make use of hemp flower in the manufacture of products in France, Kanavape’s products are made in the Czech Republic in accordance with the applicable Czech legislation.

After being sentenced in January (18 and 15 months suspended sentences and a fine of 10.000 euros), the two defendants lodged an appeal with the court of Aix-en-Provence, which itself then submitted an opinion to the European Court of Justice, saying the French regulation may not be compatible with that of the EU.

The ruling on this case could, potentially, set a precedent for the rest of Europe.

Health and safety concerns of hemp flower?

On the UK government’s website, it clearly states that “the importing member state can disregard this principle only under strictly defined circumstances, such as where public health, the environment or consumer safety are at risk, and where the measures taken can be shown to be proportionate.”

So, are there any safety risks or concerns when it comes to hemp flower? A product that has been consumed in Europe for hundreds of years and around the world for thousands?

There is none. Hemp is grown widely throughout Europe (including the UK) and cultivation is restricted to seed varieties approved by the EU. These cannabis varieties are considered non-psychotropic, ‘non-drug’ varieties thanks to their extremely low THC content.

Hemp can contain cannabidiol (CBD) in higher amounts, but even the World Health Organisation has concluded that “CBD does not appear to have abuse potential or cause harm”, that “there is no evidence of any public health-related problems” associated with the use of CBD.

In fact, the widespread availability of CBD flower in Italy led to a significant reduction in the number of prescription drugs dispensed by the country’s National Health Service. It also resulted in an estimated 200 million Euros being funelled away from the black market.

Perhaps the only health concern to come from CBD-rich hemp flower is unsavoury cultivation practices, contaminants, and adulteration to the product. Apparently, some hemp flower suppliers artificially raise the CBD content of their product by spraying it with CBD isolate (pure CBD) and improve the aroma by spraying it with terpenes. 

Which is why…

The UK needs to regulate the hemp flower industry

The demand for CBD is growing exponentially around the world. And the flowering tops of the hemp flower are the primary source of this CBD. What sense does it make to restrict the sale of hemp flower yet allow products derived from it like CBD oil?  

Bizarrely, at this moment in time, while UK farmers are permitted to grow hemp (providing they have a license), they are not allowed to use the flowers in any way and must either destroy them or send them overseas to be processed into CBD products. 

Clearly, this makes little sense. Not least considering the fact that UK medical giants GW Pharmaceuticals already grow vast amounts of cannabis (and process it into medicines) on UK soil ready for export.  

Even though a wide variety of CBD products are currently permitted in the UK, the regulations surrounding them are ambiguous and outdated. 
In fact, most CBD products in the UK are technically illegal due to a THC content over the legal limit (1mg per unit) as stated on the Misuse of Drugs Act 1971. 

What we need is a complete regulatory framework for the production and sale of hemp in all its forms. This will allow the UK to establish a leading position within one of the most important and rapidly growing agricultural and industrial markets of all time.

What about that prosecution?

In court, we understand that the vape shop owner pleaded guilty to supplying a class B drug. Hemp is not a class B drug. Additionally, the buds were not tested for their cannabinoid content. Therefore, this is not really a prosecution for selling hemp flower, but one for selling cannabis – a legally differentiated product. 

So, perhaps the EU principle of mutual recognition is the reason we have not seen any prosecutions for the sale of hemp flower. Maybe sellers will be allowed to continue providing their products test under 0.2% THC. 

Who knows, we could even see the domestic production of CBD-rich hemp flower in the not-too-distant future. A domestic industry with multi-billion pound potential could be the economic boost we need post-Brexit.    

Source: https://medium.com/active-europe/france-needs-to-revise-its-hemp-regulations-if-it-wants-to-comply-with-eu-law-f53a65c42280
https://www.highandpolite.co.uk/cbdnews/where-to-buy-cbd-buds-flowers-in-the-uk-and-usa