The Court of Appeals for England and Wales in the United Kingdom has set a new legal precedent by ruling that hemp flower with less than 0,2% THC should not be considered a narcotic. A decision has a significant impact on companies involved in the import and sale of CBD or low-THC hemp flowers.
Despite the important decision, it is essential to recognize that it does not provide a free pass for the import and sale of low-THC flowers, as recently seen in França. The timing and complexity of the case still require caution among companies.
According to statements by Robert Jappie, partner in the Life Sciences area at Fieldfisher, to the Business of Cannabis, this decision does not grant unlimited commercial privileges to CBD companies. However, it substantially reduces the risk of prosecution they may face.
The case at the heart of this decision involves the company Uncle Herb, an online CBD flower retailer in the United Kingdom, managed by Eleanor Margiotta and Dean Taylor. In September 2019, Customs intercepted a batch of flowers imported from Italy, leading to the arrest of the owners a year later. They were accused of being involved in the fraudulent evasion of the importation of goods and of being involved in supplying cannabis to another person, effectively accusing them of being drug dealers. These accusations had devastating effects on the owners and their activity.
The main argument that led to Eleanor Margiotta's success was based on EU legislation, which at the time overrode UK legislation. Under EU law, it was illegal to restrict the movement of c or hemp with a THC level of less than 0,2%, as it was considered an agricultural product.
Consequently, the Misuse of Drugs Act, which classified all flowers of c as controlled substances, it was considered a restriction on the circulation of hemp. As a result, the Supreme Court ruled in favor of Eleanor Margiotta, declaring that no wrongdoing had been committed.
It is important to note that the success of Eleanor Margiotta's argument was based on the fact that the transaction took place before the UK officially left the EU, on 31 January 2020. After this date, laws relating to the free movement of goods in the EU no longer apply to the UK.
Therefore, cannabis companies under investigation for activities after this cut-off date cannot make the same argument. However, those facing infringement charges before the cut-off date can confidently argue against their guilt based on this new legal precedent.
While caution is advised, the decision remains potentially powerful for the CBD industry. The Court of Appeal's confirmation that the CBD flower does not contain enough THC to be considered a narcotic product challenges the government's control over it as such.
Robert Jappie suggests that this can cause significant problems for the Crown Prosecution Service (CPS) in similar cases. If a product is not a narcotic and does not cause psychoactive effects, public interest in prosecuting companies and individuals as drug dealers diminishes.
This decision may lead the CPS to reassess its position and present a statement justifying the fact that it is treating a non-narcotic product as a narcotic. These actions could have far-reaching consequences and eventually lead to a decision similar to the one taken in France.
The recent Court of Appeal ruling has set a significant precedent for the UK CBD and low-THC hemp flower industry. While it does not offer an unrestricted green light for companies, it certainly provides greater clarity and reduces the risk of prosecution. The implications of this decision are likely to be closely monitored in the coming weeks and could have far-reaching effects on the legal landscape of the sector.
This article was originally published by Ben Stevens on Business of Cannabis and translated and adapted for Cannareporter by João Xabregas.
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