Cannabis: French high court ruling puts CBD products back on sale

France’s highest administrative court has temporarily overturned a ban on the sale of cannabidiol (CBD) flowers and leaves in France, less than a month after it was introduced by the government. This is just the latest stage in France’s convoluted history with cannabis.

A worker prepares CBD dried flower buds at a CBD cannabis production company.
A worker prepares CBD dried flower buds at a CBD cannabis production company. Photo: Fabrice Coffrini / AFP

A ministerial order had banned the sale of hemp flower and leaf loaded with CBD, from December 31st 2021 – but the Conseil d’Etat has provisionally overruled that decision, pending further examination of the order. 

CBD is derived from cannabis but contains none of the psychoactive compounds, such as tetrahydrocannabinol (THC), found in cannabis that would make users “high”.

In its ruling, the court noted that the flowers and leaves of certain varieties of cannabis were “devoid of narcotic properties” and could therefore be marketed in France.

In a statement, the court said: “The interim judge … considers there is a serious doubt as to the legality of this general and absolute ban because of its disproportionate nature”.

But what does its decision actually mean?

READ ALSO The long and winding road towards changing France’s cannabis laws

Hemp flowers and leaves back on the market

A handful of sub-varieties of cannabis Sativa L, including so-called “industrial” hemp, are authorised for “cultivation, import, export and industrial and commercial use” in France, as specified in the ministerial decree of 30 December 2021, which nonetheless prohibited the sale of hemp in the form of raw leaves and flowers. 

These varieties contain a very low level of tetrahydrocannabinol (THC), another active ingredient in cannabis, which has psychotropic effects. As long as the plant has a THC content of less than 0.3 percent, its leaves and flowers can be sold commercially. 

However, the rules for cultivation, sale and consumption remain unchanged. Only registered hemp growers are allowed to grow these strictly controlled plants and may only cultivate the varieties listed in the official French catalogue. 

The sale of hemp flowers and leaves is forbidden to under 18s, as a precaution as health authorities still admit to knowing little about CBD.

CBD-based products are also authorised, under certain conditions

Numerous CBD-based products such as resins, creams, oils, sweets or cereal bars were unaffected by the ministerial ban, which primarily targeted CBD for smoking – but tisaines and herbal teas were temporarily banned, as they could contain raw flowers or leaves.

Following the Conseil’s decision, the only requirement is that the finished CBD product must have a THC content of 0. As with leaves and flowers, the sale of these products is prohibited to minors. Most shops also advise against selling CBD to pregnant or breastfeeding women.

Importantly, producers and sellers cannot claim any therapeutic benefits of CBD, as the medical use of cannabis is only just being examined by France’s medicines authority, the Agence nationale de la sécurité du médicament (ANSM). 

READ ALSO Why CBD cannabis ‘health shops’ are blossoming all over France

High levels of THC remains illegal

The rest of the leaves, flowers, resins and products derived from cannabis with a THC content of more than 0.3 percent are considered as narcotics and their use, possession, sale or trafficking. 

Consumption is a criminal offence punishable by one year’s imprisonment and fines of up to €3,750. Growers and sellers risk up to 10 years in prison. 

By way of comparison with products sold legally, cannabis sold on the black market has an average THC content of 11 percent for weed and 26.5 percent for resin, according to the latest figures from the Observatoire français des drogues et des tendances addictives (OFDT).

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EXPLAINED: Just how strict are France’s privacy laws?

French police have opened an investigation into paparazzi photos of president Emmanuel Macron and his wife Brigitte on holidays - so what do France's famously strict privacy laws say about these type of snaps?

EXPLAINED: Just how strict are France's privacy laws?
Publishing photographs in France is governed by privacy laws. Photo: Clement Mahoudeau/AFP

Police have opened an investigation into the photos, including one of the President on a jet ski wearing swimming trunks, which appeared as part of an exhibition from paparazzo Thibaut Daliphard in Paris earlier this month.

The Macrons are not the only political figures unhappy about photos of them being published. Far right pundit and possible presidential candidate Eric Zemmour has also filed a complaint against the magazine Paris Match after a photo showing him in the sea, very close to one of his advisors, made the front page.

Zemmour’s lawyer Olivier Pardo told BFMTV he would be pursuing the complaint, since the photos violated the polemicist’s right to privacy, and there was “intent to cause harm” to his reputation.

READ ALSO French police launch investigation into photo of Macron in swimming trunks

It’s not unusual for public figures to take publications to court to defend their right to privacy, but how much are photographers able to get away with?

What the law says

“Everybody has the right to privacy.”

That simple phrase is enshrined in Article 9 of the French Civil Code and the courts’ definition of what constitutes a private life has been pretty broad including love life, friendships, family circumstances, religious or political opinions and state of health.

Within this is the bit that covers photos and videos – it’s called the droit à l’image  (image right) and states that everybody has a basic right not to have images of themselves published against their will.

However, exactly how this is applied – particularly when it comes to public figures – relies on precedent and can get pretty complicated.

When it comes to photos taken in a private space, the photographer usually requires the consent of their subjects when they can be identified. France’s penal code states that taking or publishing a photo of somebody, taken in a private place without their consent, is punishable by up to a year in prison and a €45,000 fine.

It is worth noting that a car is considered a private space, which is why a French court ordered Closer magazine to pay damages to actress Julie Gayet, after publishing a photo of her allegedly on her way to meet then-president François Hollande, with whom she was having an affair.

READ ALSO French farmer filmed in underpants confronting conservationists wins €10k in privacy claim

Journalists and media organisations do have the option to argue that the publication was in the public interest, but the test for this is strict and – as the Gayet case shows – the simple fact of someone having an affair may not meet it.

In public spaces, no particular authorisation is needed if – crucially – a public figure is aware that their photo is being taken or if the image illustrates a newsworthy event.

So you are also allowed to publish photos of public figures on the campaign trail, but paparazzi shots on the beach would be more difficult to justify.

For ordinary members of the public in general consent is required, unless the publication is in the public interest or if the person is pictured as part of a large crowd, for example at a demonstration.

The law on publishing all types of images of under 18s is very strict, while relatives can make a complaint about the use of a dead person’s image if the publication adversely affects their reputation. It’s worth pointing out that ‘publishing’ includes posting pictures on social media.

Test case

It is often said that people in France are more willing to ignore facts relating to politicians’ private lives, and this has traditionally been reflected in the law. But, influenced by the European Court of Human Rights, French courts have in recent decades given increasing weight to the question of whether photos or information published are in the public interest.

Which is what it could come down to in the case of Zemmour.

“What can it do for intellectual and political debate to know how Eric Zemmour swims, how he looks in a swimsuit at the beach?” his lawyer said.

Paris Match on the other hand has argued that Zemmour’s advisor, Sarah Knafo, is key to his rise as a political figure.

Photos regularly published

Considering the strict rules in place to protect privacy in France, it can seem surprising that magazines don’t seem deterred in their pursuit of scoops. Nanterre in Paris’s suburbs has seen a long string of public figures parading through its court over the years seeking compensation for having had their privacy violated.

In 2015, two celebrity magazines were fined for taking photos of Hollande and Gayet at an official country residence in Versailles.

In 2017, a French court ordered Closer to pay €100,000 in damages to Britain’s Prince William and his wife Kate Middleton after publishing topless photos of her in 2012.

Magazines may decide that any potential fine is worth it when compared to the increase in sales a particular scoop could bring. But editors are more likely to cite the public interest when defending their decisions.

“To say we’re ‘making money’ with this subject, that the additional sales cover the damages, that overall we come out ‘on top’… that’s the most demagogic argument used against celebrity magazines in general, and it’s also the most wrong,” Closer’s editorial director Laurence Pieau told Le Point in 2014, after her magazine published photos of Florian Philippot, then vice-president of the far right Front National, with a man it claimed was his partner.

“France has the most restrictive laws on this issue. Damages are much higher than anywhere else. In the United States, people practically never sue, because they consider it to be part of the job.”

Despite the magazine’s claims that the photos were in the public interest due to Philippot’s opposition to gay marriage, Closer was ordered to pay the politician €20,000 in damages.

Presidential photoshoots

The August summer holiday at Bregancon is a long-standing traditional for French presidents and past French leaders had often posed for photographs in an attempt to head off paparazzi, beginning with Charles Pompidou and Valery Giscard d’Estaing in the 1970s.

But while later presidents, including Macron, continued the tradition, paparazzi photographers have staged ever bolder attempts to snap them in private moments.

Both Nicolas Sarkozy and François Hollande and their partners were also photographed without their knowledge in their swimming trunks in the azure waters lapping at the foot of the fort.