European Court criticises French ban on 'whole plant' Cannabis products

To what extent can an EU Member State lawfully prohibit the marketing of cannabis products lawfully produced in another Member State?

In a ruling handed down this morning in a case concerning the marketing in France of cannabidiol (CBD) produced in the Czech Republic from whole Cannabis Sativa plants, the European Court of Justice decided that Member States retain a broad discretion on public health grounds to prohibit such sales. However, the Court ruled that such discretion has to be exercised within the proportionality 'tramlines' laid down in the EU Treaty.

Those 'tramlines' require prohibitions such as this to be proportionate to the public health goal being pursued (and form part of a consistent and systematic approach to the topic), as well as being objective and non-discriminatory. In the context of evolving and uncertain science, such as CBD, the Court also pointed out that the precautionary principle also has an important role to play.

Without ruling on whether the French ban was in fact proportionate (a matter for the local courts to determine), the Court observed that the ban would not affect the marketing of synthetic CBD that had the same properties as whole plant CBD and that could be used as a substitute for the latter. To that extent, it noted, the French legislation might well not be appropriate for attaining the relevant public health objective in a consistent and systematic manner.