To the Bureau of the Congress of Deputies
The parliamentary groups Unidas Podemos (UP), Esquerra Republicana de Catalunya (ERC) and Euskal Herria Bildu, in accordance with Article 193 et seq. of the Rules of the Chamber, submit the following non-legislative motion to promote the regulation of hemp for industrial purposes and of non-psychoactive cannabis, protecting growers, processors, sellers and users, for debate in the Committee on Agriculture, Fisheries and Food.
Explanatory memorandum
I
Industrial hemp is a centuries-old crop with a long tradition in Spanish agriculture, thanks to the country’s particular climate, which provides ideal conditions for it to grow. The traditional uses of the plant are known worldwide, such as the production of textile fibres and of vegetable oils and proteins from its seeds. It is also a crop that helps reduce the environmental impact of agriculture, as it uses few soil resources and needs little water (2.5 times less than cotton), all of which helps to curb desertification. It is also an excellent crop to replace surplus plantations and to use in crop rotation. Besides its traditional uses, in recent years a growing number of hemp-derived products with very low levels of tetrahydrocannabinol (THC) and higher concentrations of other cannabinoids, mainly cannabidiol (CBD), have been sold across Europe. These are commonly known as cannabis light or non-psychoactive cannabis products. They include products generally used by combustion, such as flowering tops and resins, and products sold as cosmetics, food, drinks, food supplements and animal feed, among others. As demand for these products has grown, hemp plantations have spread throughout Spain, which in some cases involve the extraction and distribution of flowering tops and other products based on the CBD obtained from them. This has raised political concerns about the legal status of these products and the regulatory frameworks applicable to their production and sale.
II
The United Nations drug control conventions are the basis of national laws on narcotic substances. While the 1961 Single Convention on Narcotic Drugs placed under control the flowering tops, extracts and tinctures of the Cannabis sativa L. plant, it also excluded from its scope the cultivation of cannabis plants for industrial purposes, a crop that is even subsidised by the European Union. To qualify for subsidies, growers must use certified seed of varieties listed in the EU Common Catalogue of Varieties of Agricultural Plant Species or varieties with a Provisional Marketing Authorisation (APC). All these varieties have a THC content of around 0.3% during flowering, the limit set by the new Common Agricultural Policy (CAP) since January 2023. Although the THC limit only applies to obtaining subsidies, in practice the Spanish authorities wrongly interpret it as a general ban on growing the plant. Since no regulation sets this general 0.3% THC limit, a method increasingly used in Spanish legal practice is the so-called “psychoactivity index”, applied by the National Institute of Toxicology (INT) when it analyses hemp-derived products in court cases against growers or sellers. This method is the most suitable way to set a threshold distinguishing a non-narcotic hemp sample from a narcotic cannabis sample. In fact, there are currently many favourable court decisions from courts throughout Spain (both judgments and dismissal orders at the investigation stage) based on the psychoactivity index. The method is set out in Protocol ST/NAR/40 of the United Nations Office on Drugs and Crime (UNODC), whose section 3.15 establishes when cannabis plants can be considered narcotic. It weighs the ratio between the main cannabinoids, THC, cannabinol (CBN) and CBD, so that “if the ratio of the peak areas [THC + CBN]:[CBD] is less than 1, the cannabis plant is considered a fibre type; if the ratio is greater than 1, it is considered a drug type”. This method accurately assesses whether a cannabis sample is narcotic, because it takes into account the effect of CBD, which, as the specialist scientific literature shows, modulates and reduces the narcotic effect of THC.
III
In the European Union, the new uses of hemp and CBD suffer from an unhelpful lack of regulation, which has led to different interpretations by the Member States. In the absence of a stable legal framework, the Court of Justice of the European Union (CJEU) had to clarify how this active ingredient should be treated in law. In its judgment of 19 November 2020 (C-663/18, B S and C A), the Court ruled that a Member State may not restrict the marketing of CBD extract lawfully produced in another Member State when it is extracted from the whole Cannabis sativa L. plant and not only from its fibre and seeds. Such a restriction would breach the EU principle of mutual recognition laid down in the Treaty on the Functioning of the European Union. In the same judgment, the CJEU stated that CBD cannot be considered a narcotic drug, so its extraction from hemp plants cannot be considered illegal, whatever parts of the plant are used. The Court’s legal reasoning is that, in addition to the 1961 Single Convention, which controls parts of the plant such as the flowering tops and extracts of Cannabis sativa L., another international treaty must be taken into account: the 1971 Convention on Psychotropic Substances. That convention controls the narcotic active ingredients of cannabis, among many others. The main one, and the only one relating to the cannabis plant, is THC (together with its isomers and stereochemical variants). For this reason the CJEU held that, on the basis of current scientific knowledge, CBD does not appear to have psychotropic or harmful effects on human health, and that this active ingredient is not mentioned anywhere in the international drug control conventions. Accordingly, CBD and any other cannabinoid from the plant other than THC cannot be regarded as controlled, because if the drafters had intended to control them they would have listed them in the 1971 Convention, as they did with THC; holding otherwise would go against the spirit of both treaties. The CJEU’s interpretation of CBD is consistent with the report issued in 2018 by the World Health Organization (WHO) on the adverse effects and dependence potential of CBD. In that report, the WHO concludes that CBD, besides not being expressly controlled by the international conventions as THC is, has no addictive or narcotic potential. In short, no harmful effects on health have been observed, since it is not toxic, so restricting its sale cannot be justified on public health grounds. Following the CJEU ruling, three new entries for CBD, cannabigerol (CBG) and CBN, obtained from flowering tops and the resin derived from them, were added to the EU catalogue of ingredients that may be used in cosmetic products (CosIng). The European Commission also reacted to the CJEU ruling, stating that it would no longer classify CBD as a narcotic and that this active ingredient can qualify as food, provided that the other conditions of EU food law are met. The CJEU’s finding that CBD is not a narcotic under the international conventions is therefore having far-reaching consequences for EU legislation, which will have to adapt to this criterion and address the issue in a harmonised way in the near future.
IV
More and more countries in the European Union and in Spain’s social, cultural, political and economic sphere have moved to adapt to the new legal paradigm for non-psychoactive cannabis. In Belgium, the Federal Public Service has announced that plant-based products used by combustion, such as dried hemp flowering tops without tobacco that contain CBD and are low in THC, are legal and fall under the category of “other herbal smoking products”. Similarly, in Austria and Luxembourg hemp flowering tops are registered as herbal smoking products through the EU-CEG portal established by Directive 2014/40/EU of the European Parliament and of the Council. On 30 December 2021 France issued a decree authorising the cultivation, import, export and industrial and commercial use only of low-THC Cannabis sativa L. varieties listed in the common catalogue of varieties of agricultural and vegetable species or in the official French catalogue of cultivated plant species and varieties. The decree allowed this only for producing extracts and banned the sale of raw flowers and leaves to consumers. The decree was challenged in urgent proceedings in early 2022, and the French Council of State suspended its application while it examined the case. On 29 December 2022 the Council of State finally annulled the decree’s general and absolute ban on selling flowers and leaves to consumers, calling it “disproportionate”. The Council of State justified this by finding that neither raw low-THC cannabis flowers and leaves nor CBD have psychotropic effects, cause dependence or pose a health risk that would justify a general and absolute ban. As a result, the production and sale of low-THC hemp flowers, leaves and extracts, whether for the processing industry or for end consumers, is authorised in France. France is expected soon to become Europe’s largest producer of these products, with all that this entails: industrial development, job creation, economic activity and keeping people in rural areas. Several lessons can also be drawn from the growing legislative experience with non-psychoactive cannabis in EU countries such as Italy and the Czech Republic, among others. In Italy hemp cultivation has been regulated since January 2017, when Law No 242/2016 promoting hemp cultivation and its industrial uses came into force. The aim of the law is to regulate hemp cultivation and the hemp supply chain. The Italian Ministry of Health does not require farmers to obtain any authorisation to grow hemp plants with a THC content of between 0.2% and 0.6%. Likewise, on 1 January 2022 the Czech Republic regulated hemp and its extracts with a total THC content below 1%, which are no longer considered narcotic following the adoption of Act No 366/2021 Coll., amending Act No 167/1998 Coll. on Addictive Substances.
V
Outside the European Union, there are other countries in Europe and the rest of the world where non-psychoactive cannabis is regulated, such as Switzerland. As in the Czech Republic, Swiss regulation makes the total amount of THC in a cannabis product the decisive factor in classifying it as a prohibited narcotic. If the THC content does not exceed 1%, the product is permitted, including flowering tops, both for making extracts and for use as a tobacco substitute. Swiss law distinguishes between non-psychoactive cannabis products sold as raw materials and those intended for end consumers. To decide which legislation applies, all the properties of the product must be considered in an overall assessment and weighed case by case. Switzerland also allows private hemp cultivation, provided the THC content of the varieties used is below 1%. As regards food, the United Kingdom enjoys a clear competitive advantage over EU legislation. Its government food safety agency, the Food Standards Agency, allows companies to keep selling CBD products that were already on sale on 13 February 2020, provided they are safe, correctly labelled and do not contain THC or any other substance covered by drug legislation. In Latin America, more and more countries have regulated or are proposing regulation of non-psychoactive cannabis. Examples include Uruguay, Peru, Mexico and Colombia, among others, whose regulations share a common THC limit of 1%. In recent years the trend towards regulating non-psychoactive cannabis has also been seen on other continents, in China and Thailand in Asia, and in South Africa and Morocco in Africa.
VI
In view of the above, it is clear that European States are willing to regulate the new consumption habits relating to industrial hemp products and the cannabis light or non-psychoactive cannabis market, in recognition of the fact that CBD is not a controlled substance, as the CJEU has held. In Spain, the legal interpretation should be brought into line with that of neighbouring countries, moving away from the very restrictive readings of the international drug control conventions that some Spanish authorities apply. The Spanish Agency of Medicines and Medical Devices (AEMPS) argues that parts of the plant such as the flowering tops are controlled, even if they do not contain enough THC to have narcotic effects. The AEMPS thus interprets the international drug conventions very restrictively, banning flowering tops simply because of what they are rather than because of their narcotic potential, which, in the spirit of those conventions, should be the basis for control. As a result, it makes everything related to hemp cultivation and the use of its flowering tops and derived products subject to its prior authorisation. In practice this is not possible, and it is also inconsistent with the agency’s remit, since this is an agro-industrial matter that should fall to the Ministry of Agriculture, Fisheries and Food (MAPA) and the competent regional departments. Both the Special Anti-Drug Prosecutor’s Office (FEA) and the MAPA took this line in 2021: the former through an Instruction from its Chief Prosecutor and the latter through an information note later reproduced by several regional agriculture departments, such as those of Andalusia, Extremadura and Catalonia. In these documents they adopt the AEMPS’s restrictive interpretation and treat flowering tops as narcotic, even in crops of varieties listed in the common catalogue of varieties of agricultural and vegetable species with a THC content below 0.2%.
VII
Maintaining a restrictive approach that runs counter to the regulatory reality of the European Union and the rest of the world leaves Spain unjustifiably behind, and this must not continue. This obstructive situation causes poverty and legal uncertainty for those who produce and sell the plant and its derivatives, and clearly puts them at a disadvantage compared with other EU countries. For all these reasons, it is appropriate to draw up, at national level and around the concept of non-psychoactive cannabis, a law regulating every aspect of the production cycle of these products, as other countries have done, or at the very least to clarify the legal position and bring Spain into line with the limits set by EU rules and courts. Finally, regional legislation can also be developed on the basis of regional powers over agriculture, implementing the EU directives on industrial hemp cultivation and the trade in its derived products more precisely. For all these reasons, the undersigned parliamentary groups submit to the Bureau of the Chamber the following
Non-legislative motion
“The Congress of Deputies calls on the Government to: 1. Make progress towards comprehensive cannabis regulation in order to provide legal certainty for the production, sale and consumption of products derived from industrial hemp, respecting regional powers and the principle of subsidiarity in matters of public security, health and agriculture. 2. Urge the AEMPS to issue a statement in line with the CJEU judgment of 19 November 2020, clarifying and demonstrating the State’s commitment to and respect for the European legal order. 3. Set a THC limit of 1% in future regulation of non-psychoactive cannabis, thereby ensuring the absence of narcotic effects as well as higher crop yields and sustainability in line with the European Green Deal; failing this, operators in this market would be at a clear disadvantage compared with neighbouring countries. 4. Clarify that the regional authorities responsible for agriculture have full competence over hemp cultivation and, in particular, over processing declarations of hemp cultivation for industrial and horticultural purposes. This should cover not only its traditional uses but also the production and sale of all parts of the hemp plant, including flowering tops without narcotic effects, whether sold as “herbal smoking products” or used to extract non-narcotic cannabinoids such as CBD. 5. Follow the progress being made at European level in order to diligently implement a legal framework for all hemp-derived foods, including those containing CBD and other cannabinoids without narcotic effects, taking into account, where appropriate, the novel food authorisation procedures. 6. Harmonise the inspection, control and analysis of hemp crops and derivatives through the regional authorities responsible for agriculture, using methods that are neither intrusive nor destructive for the crops.” Congress of Deputies, 25 January 2023.
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