The regime applicable to cannabis and CBD consumption often appears hazy. It is nevertheless necessary to show rigor and to clearly distinguish between the two products (I). In the event of an arrest for drug use, the person arrested and possibly placed in police custody must be attentive to the smooth running of the procedure (II).

I – The legal distinction between CBD and cannabis

Narcotics are exhaustively listed in the convention on narcotics. In accordance with the provisions of article 55 of the French Constitution, this convention has a value superior to the laws and applies directly in French law. However, the convention does not include CBD but only cannabis. It follows that only cannabis can be qualified as a narcotic under French law.

The Court of Justice of the European Union, whose decisions are directly applicable in French law, held in the KANAVAPE judgment dated November 19, 2020 (C-663/18) that, under the current state of scientific knowledge, CBD does not include any psychoactive element, and that it would be contrary to the purpose and general spirit of the Convention to include CBD in the definition of narcotic drugs (point 75).

The Court of Justice of the European Union also recalled that “the CBD in the main cause does not constitute a narcotic, within the meaning of the Single Convention”.

The Convention and the Court of Justice of the European Union are clear: CBD is not a narcotic.

In the event that the member States of the European Union opt for restrictions on the sale and use of CBD, the Court of Justice of the European Union holds that it is necessary to respect the principle of proportionality. Consequently, the means chosen by the States must be limited to what is actually necessary to ensure the safeguard of public health and be proportional to the objective pursued.

However, the Commission on Narcotic and Psychotropic Drugs in its session n°11 dated June 25, 2015 held that CBD in general does not present any major risk associated with its consumption. It follows that the limitations can only be circumscribed.

It is therefore possible to sell, consume and even register a CBD trademark.

In France, if the legalization of cannabis still seems far away, it is clear that studies tend to subject the consumption of cannabis to a derogatory regime to the consumption of narcotics. This results not only from the fact that cannabis is considered as a “soft drug”, but also from a desire to unclog the Courts, in particular correctional courts, which are overwhelmed with cannabis-related cases. An experiment is thus carried out aimed at contraventionalizingthe consumption of cannabis in order to accelerate and facilitate sanctions.

In the event that a person is arrested for the consumption of CBD, cannabis or another narcotic product, it would be advisable to remain very attentive to the procedure.

II – The legal procedure for the consumption of CBD, cannabis and other narcotics: some advice

In the event of an arrest for drug use, the police are required to carry out a first saliva test. If the test is positive, the police will have to carry out a second saliva test. If the second test is positive, the arrested person may, after being informed of the test results, request another test within 5 days. We would suggest to request this test as judges could consider the absence of test as an implicit recognition of the offence.

If the person has consumed narcotics, his only hope lies in a possible mistake that may occur. This would be the case if between the two tests, one of the two was positive and the other negative, so that there would be a doubt upon the reliability of the tests. A reasonable doubt may also soar where the expert behind the analysis was not an expert with the competent Court of Appeal. Finally, it is not inconceivable that the second test will give a more favorable result to the defendant (if the tests are more and more accurate, false positives can still happen).

In terms of CBD, certain tests used reliably distinguish between cannabis and CBD consumption when the latter is consumed in the form of drops. Studies raise doubts about the reliability of these tests when CBD is consumed by inhalation (i.e. when smoked). In this case, a reasonable doubt remains when the CBD consumer has tested positive for cannabis. This doubt must benefit him.

In addition, if the level of narcotic consumption is not considered by the Court of Cassation as constituting the offense (it suffices to be positive for the test), the Public Health Code has established tolerance thresholds for the tests that must be respected and communicated in the procedure.

Finally, if no nullity can be obtained during the trial, it will be necessary to discuss the personalization of the sentence. The person prosecuted should thus provide proof of the existence of a job (ideally a permanent contract), of accommodation which is rented or owned and of a family and friendly environment (it could be useful to provide proof of the existence of a PACS, of a marriage or of having had children).

For any advice, do not hesitate to contact the firm.