There have been several attempts to remove CBD from the list of psychotropic substances in the Slovak Republic. The latest attempt was a draft amendment to the law in 2019, but the removal of CBD was not approved on the grounds that “the Slovak Republic has classified cannabidiol as a controlled psychotropic substance based on its chemical similarity to tetrahydrocannabinol (THC). The Ministry of Health of the Slovak Republic is aware of and has access to numerous studies on CBD, but to date, no relevant clinical studies on cannabidiol have been submitted in accordance with the rules of evidence-based medicine (EBM) that would prove that cannabidiol has no psychotropic effects.“
However, at first glance, this national legislation may not be in line with EU law. The Treaty on the Functioning of the European Union (TFEU) guarantees the free movement of goods, services, capital, and persons within the internal market. The meaning and purpose of this legislation is to ensure that goods traded on the market of one Member State can move freely to other Member States. Article 26(2) TFEU defines the internal market as “an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.” The meaning and purpose of the ZoOPP legislation is to establish a list of substances that are proven to be addictive, cause behavioral changes, affect the central nervous system, etc. Therefore, if it has not been proven that CBD has narcotic or psychotropic effects, classifying this substance as a narcotic or psychotropic substance does not serve the meaning and purpose of the law and appears to be unjustified. This conclusion is supported, for example, by the fact that neither the UN nor the EU has classified CBD as a narcotic or psychotropic substance. The Slovak Republic thus remains the only EU country where products containing CBD are illegal.
However, before any amendment to the ZoOPP is made, CBD may be permitted as a substance in products and goods thanks to ongoing proceedings before the CJEU in case C-663/18. This dispute concerns the marketing of an electronic cigarette in France, the refill of which contains a liquid with CBD. The directors of the company that marketed this electronic cigarette were convicted in criminal proceedings on the grounds that the oil containing CBD in the refills for electronic cigarettes was extracted from the whole cannabis plant, including leaves and flowers. French law restricts the cultivation, import, export, and industrial and commercial use of cannabis to fiber and seeds only. The company’s directors were not prosecuted for marketing a product containing more than the legally permitted THC threshold of 0.20%, as according to the analysis, their products did not exceed this value.
The case in question concerns the assessment of whether secondary EU law prevents a Member State from prohibiting the import of oil containing CBD from another Member State when it has been extracted from the whole cannabis plant and not just from the fibers and seeds. This concerns the compatibility of national legislation restricting imports of hemp from another Member State to fiber and seeds only with Regulations No. 1307/2013 and No. 1308/2013, as well as with Articles 34 and 36 TFEU.
On May 14, 2020, Advocate General Evgeni Tanchev of the CJEU delivered his opinion, stating: “[66.] … Articles 34 and 36 TFEU are, in my opinion, applicable and preclude legislation such as that described in paragraph 62 above, since it appears that oil containing CBD has no psychotropic effects and that the legislation at issue in the main proceedings is therefore not capable of ensuring the protection of human health. However, it will be for the national court to ascertain that the use of CBD oil does not entail any risk of harmful effects, in particular other than psychotropic effects and, if such a risk exists, that the legislation at issue in the main proceedings does not go beyond what is necessary to protect human health. … [76.] CBD oil falls within the scope of Articles 34 and 36 TFEU (…) [84.] Given the limited amount of precise information provided to the Court, it will be for the national court to verify whether the use of CBD oil in electronic cigarettes poses a risk to human health and, in particular, whether CBD oil has harmful effects other than psychotropic effects. If so, it will also be for the national court to determine whether the decree of 22 August 1990 goes beyond what is necessary to protect human health, since that decree simply prohibits the importation of CBD oil extracted from the leaves and flowers of cannabis where it is possible to determine the maximum CBD content, similar to the threshold value of 0.20% set for THC. … [85.] I conclude that Articles 34 and 36 TFEU preclude legislation such as that at issue in the main proceedings, which prohibits the importation of oil containing CBD when it is extracted from the whole cannabis plant, since, in the current state of scientific knowledge, it has not been proven that oil containing CBD has psychotropic effects. However, it is for the national court to ascertain that no risk has been identified in relation, in particular, to effects of CBD other than psychotropic effects and that that risk has not been the subject of a complete scientific assessment and, if it concludes that such a risk exists and such an assessment has been carried out, to ensure that an alternative measure less restrictive of the free movement of goods, such as the setting of a maximum CBD content, may be adopted.
The Advocate General states that the ban on placing electronic cigarettes containing CBD extracted from the whole cannabis plant on the French market is disproportionate and does not meet the condition of proportionality ( ). Such a ban is therefore contrary to primary EU law and the rules on the free movement of goods in the internal market, but the legally binding opinion on this matter rests with the CJEU in its final decision. If the Slovak Republic repeatedly fails to adopt the amendment to the ZoOPP, the Slovak market for products containing CBD may be opened up precisely because of this decision by the CJEU.
Sources:
Information on the planned amendment available at
Reasons for not removing CBD from the list of psychotropic substances available at
The Opinion of Advocate General Evgeni Tanchev is available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=226500&pageIndex=0&doclang=SK&mode=req&dir=&occ=first&part=1&cid=14065745
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