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14 August 2019
The Supreme Court has ruled that cannabidiol (CBD) oils containing tetrahydrocannabinol (THC) which originated from legally cultivated hemp constitute illegal narcotics. The court argued that since CBD oil can be defined as a preparation in accordance with the Convention on Psychotropic Substances 1971 and contains THC, it is an illegal substance.
Interestingly, the court made no mention of THC quantities in its decision but found it sufficient that CBD oils containing any amount of THC constitute illegal narcotics. Further, the court did not address the distinction between CBD oils for oral consumption and those used in cosmetics and hygiene products. Consequently, CBD-containing cosmetics and hygiene products may also be illegal if they contain THC, irrespective of the amount and whether it originates from legally cultivated hemp.
In recent years, CBD oils and other CBD products have increased in popularity. The CBD in such products usually derives from legally cultivated hemp (so-called 'industrial hemp'), which is listed in the EU database of registered plant varieties and contains less than 0.2% THC. However, it might prove difficult to remove all traces of THC.
The Medical Products Agency (MPA) has declared that all CBD oils for oral consumption are medicinal products. Therefore, CBD product sellers require marketing authorisation. With regard to food stuffs, all foods containing CBD are classified as novel foods and must therefore be approved according to the novel food procedure before being sold. With regard to cosmetics and hygiene products, the MPA had previously suggested that products containing CBD that originated from legally cultivated hemp were legal.
However, in June 2019 the Supreme Court delivered an unexpected judgment in a case involving a person who had been prosecuted for a minor drug offence in 2017 after being caught in possession of five bottles of CBD oil for oral consumption. The oil contained THC (of an indeterminate level) and originated from industrial hemp. When the case reached the Supreme Court, it assessed whether a liquid (CBD oil) which contains THC is a preparation according to the Convention of Psychotropic Substances and, if so, whether such oil should be considered a narcotic, even though the THC originated from industrial hemp.
The Supreme Court held that preparations which contain psychotropic substances are illegal narcotics. The Convention of Psychotropic Substances provides that:
The court considered CBD oil to fall under this definition of preparation and, because it contained THC, it was considered an illegal narcotic.
In reaching its conclusion, the court had to determine whether the THC had originated from industrial hemp. The court held that that the hemp was legally cultivated and thus exempt from the definition of cannabis, which is illegal. However, the court also held that the Convention of Psychotropic Substances makes no connection between THC (classed as a narcotic substance) and cannabis per se. According to the convention, the legally cultivated hemp exemption does not affect the legislation on preparations containing THC.
The Supreme Court did not address the fact that the level of THC could not be determined, but rather found it sufficient that the CBD oil contained any amount of THC. The court also did not acknowledge the fact that the CBD oil in question was intended for oral consumption. Thus, the court remained silent as to whether the same conclusion might be drawn regarding other CBD products – such as cosmetics and hygiene products – and whether these should also be considered narcotics under the same conditions.
This decision is likely to affect several aspects of Swedish healthcare regulation. As regards medicinal products, CBD oils for oral consumption which contain THC must now obtain marketing authorisation, regardless of whether the THC levels are minimal and legally cultivated. Further, since they are now classed as narcotics, they will be regulated as such.
The future of CBD cosmetics and hygiene products containing THC (even trace amounts) is more unpredictable. For now, the likely interpretation of the Supreme Courts judgment is that CBD cosmetics and hygiene products (eg, oils and shampoos) will be deemed solutions or mixtures, meaning that they too can be considered 'preparations' containing THC and are therefore illegal. Product buyers, manufactures, sellers and importers in this sector should therefore ensure that their products are free of all forms of THC (ie, whether or not it originates from legally cultivated hemp) to avoid.
For further information on this topic please contact Jonas Löfgren or Måns Ullman at Westerberg & Partners Advokatbyrå Ab by telephone (+46 8 5784 03 00) or email (email@example.com or firstname.lastname@example.org). The Westerberg & Partners Advokatbyrå Ab website can be accessed at www.westerberg.com.
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