The ban on the sale of raw flowers and leaves from cannabis varieties without narcotic properties is suspended.
The interim judge of the Council of State, seized by traders in the sector, temporarily suspended the ban on marketing raw flowers and leaves of certain varieties of cannabis, even though their THC content is below 0.3 %. The judge noted that this threshold, below which the products are devoid of narcotic properties, is the one used by the regulations to authorise the cultivation, import, export and industrial and commercial use of certain varieties of cannabis.
The Public Health Code (Article R. 5132-86) prohibits the production, manufacture, transport, import, export, possession, offer, transfer, acquisition or use of cannabis (plant, resin and derivatives). However, the same article provides that 'the cultivation, import, export and industrial and commercial use of varieties of cannabis without narcotic properties' may be authorised.
On the basis of this derogation, the ministerial order of 30 December 2021 authorised "the cultivation, import, export and industrial and commercial use of only those varieties of cannabis sativa L. with a delta-9-tetrahydrocannabinol (THC) content not exceeding 0.3 %". This THC threshold is therefore, under the public health code, the one below which cannabis varieties are devoid of narcotic properties.
However, the same ministerial order prohibits the sale to consumers of the flowers and leaves in their raw state of these same varieties, even if the THC content of these flowers and leaves is below the threshold of 0.3%.
Several companies already marketing products from these cannabis varieties, on the basis of a previous ministerial order, urgently challenged the ban.
The interim relief judge of the Council of State considers that there is a serious doubt as to the legality of this general and absolute ban due to its disproportionate nature
In fact, it does not appear, at the end of the adversarial investigation and the exchanges which took place at the public hearing, that the flowers and leaves of cannabis sativa L. with a THC content of less than 0.3 % would present a degree of harm to health justifying a total and absolute prohibition measure: that threshold is precisely the one used by the contested decree itself to characterise the cannabis plants authorised for cultivation, import, export and industrial use. Moreover, it has not been shown that it would be impossible to monitor this content for flowers and leaves, even though the means of monitoring are detailed, for the whole plant, in the annex to the order.
While waiting for the Council of State to give a final ruling on the legality of the contested order, the interim relief judge temporarily suspended the contested ban.