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Can you be fined for carrying or smoking CBD on the street?

Fine for smoking CBD in the street

The increasing popularity of buying CBD flowers online has led to numerous questions about its legality and possible penalties related to its use. In today’s post, we tell you in detail whether hemp buds are legal, key aspects about their use, and whether carrying or smoking CBD in public places can lead to fines.

Is it legal to smoke CBD on the street?

The legality of carrying or smoking CBD on the street is more complex than it seems. In principle, they should not be fined for the possession or consumption of a substance that is legal and is not a narcotic. However, in the case of CBD flowers, you will most likely be reported and fined.

The CBD fine can be appealed, but appeals are usually dismissed by the administration. Then, you can file allegations, and ultimately you have to win in court, with the cost involved in the whole process.

If you have been fined for CBD and you appeal it saying that it is hemp or CBD and not marijuana, in administrative proceedings, the allegations are usually dismissed because they are covered by the 1961 United Nations Single Convention on Narcotic Drugs, according to which any type of cannabis, regardless of its THC content, is illegal.

In other words, the problem is not the THC content, but the part of the plant. Cannabis flower and resin is controlled, subject to regulations and controls by governmental or fiscal entities.

You must decide if you prefer to pay the fine with a 50% reduction (normally 300€), or if you want to initiate the appeal process (which will most likely be rejected), present allegations and go to court. Since the Spanish Supreme Court has not clearly ruled on the issue, there is case law both for and against, so right now it is not certain to win the appeal. According to the lawyers with whom we are in contact, it is easier for the user to pay the fine with a 50% reduction than the whole contentious-administrative process involved in appealing the fine. Please note that this recommendation may vary depending on the current legal and political situation, so it is recommended to contact lawyers for professional advice.

The lack of regulation of hemp in Spain and the helplessness of companies and users with respect to this issue is something that has been extensively discussed in the following article, whose reading we recommend to clarify the legal issue of CBD in Spain:

CBD Regulations

The only regulated forms of to consume CBD are inhalation, through eLiquid type vaporizations with CBD or CBD Vape Pen. In some countries, CBD is allowed for use in cannabis gummies and food products. And very few countries have regulated cannabis for smoking.

In Spain, as well as in other European countries, CBD flowers and their derivatives, such as CBD resin, are not legally intended for consumption (information that is indicated on all CBD bags). Thus, CBD cannabis is completely legal in Europe, as long as it maintains THC levels within the established legal limits (0.3% in Spain and in most European countries) and comes from legal hemp crops.

CBD and the legal context of smoking cannabis or marijuana in Europe

European cannabis policy has been a constant dance of hypocrisy, guided by prejudice, arbitrary criteria and outdated scientific data. One of its pillars is the 1961 United Nations Single Convention on Narcotic Drugs, where cannabis and its resin, hashish, were classified in the same schedule IV drugs as heroin. Yes, you read that right. This equation is scientifically absurd, since cannabis, at the very least, does not have the mortality risk associated with opiates. But scientific data and logic do not always prevail in politics.

The mistake was righted not too many years ago, in December 2020 (almost 60 years after that draconian classification), when evaluating various recommendations of the World Health Organization related to marijuana and its derivatives, the United Nations Commission on Narcotic Drugs voted to remove cannabis from Schedule IV of the 1961 Single Convention on Narcotic Drugs, keeping it instead in Schedule I of the 1961 Convention.. On the same date, the Commission chose not to follow the WHO recommendation to add a footnote to Schedule I of the 1961 Convention, stating “Preparations containing mainly cannabidiol and not more than 0.2% delta-9-tetrahydrocannabinol are not subject to international control”. If this note had been added, the current legal situation of CBD flowers would be different. Anyway, keep in mind that these UN drug classifications are not scientific data: they are decided by political votes, which may be influenced by scientific data, but also by other motivations.

The worst thing about this biased drug policy is that, over the years, it has permeated public opinion, making people think that cannabis is a dangerous substance and criminalizing its users. And so we have reached a point where rolling a joint in the street may be frowned upon and require police action (although not always: there are those who maintain a certain tolerance).

Can you be fined for smoking CBD in the street?

The legal status of CBD flowers is controversial for some (although others of us are clear about it). When the 1961 United Nations Single Convention on Narcotic Drugs was drafted, THC-free marijuana did not even exist. Therefore, until recently, these international treaties did not include CBD.

The worst thing is that this document is still the key instrument that jurisprudence usually handles to give content to the normative element of narcotic drugs. This is why all appeals of CBD fines are dismissed, since the 1961 United Nations Single Convention on Narcotic Drugs considers any type of cannabis flowers or resin as a narcotic drug, regardless of its THC content..

To answer the question of whether you can be fined for carrying or smoking CBD, we can rely on published judgments of people who have had hemp seized and on the judgment of lawyers who specialize in the field.

Differences between CBD and marijuana

While marijuana with THC is illegal because it is considered a narcotic drug, hemp buds without THC cannot be considered a drug because they do not produce the psychoactive effects of marijuana. In this case, the defense would be based on the fact that the protected legal right is not affected (they are not narcotics).

Cannabis CBD is a variety of marijuana that contains virtually no THC (less than 0.2% content), and therefore is not a narcotic and cannot be considered a drug, but could technically be classified as “hemp fiber”.

However, hemp and marijuana have many characteristics in common, including terpenes, which are the components responsible for the smell of marijuana. In contrast, cannabinoids, such as THC or CBD, have no odor. In other words:

Hemp and marijuana have the same appearance and aromas, and the only way to differentiate them is by means of a cannabinoid analysis in specialized laboratories.

What do the police do if they find CBD buds?

The main problem is that CBD flowers cannot be differentiated with the naked eye from THC marijuana: a cannabinoid analysis is needed, which can only be performed in specialized laboratories. Therefore, it will not be possible to prove on the spot whether what is being carried or smoked is marijuana or hemp.

In the legal context of Spain, the Organic Law 4/2015, of March 30, on the protection of citizen securityArticle 36.16 of the “Gag Law”, popularly known as the “Gag Law”, establishes that it is considered a serious offense “the illicit consumption or possession of toxic drugs, narcotics or psychotropic substances, even if not intended for trafficking, in places, roads, public establishments or public transport, as well as the abandonment of the instruments or other effects used for this purpose in the aforementioned places”. Therefore, Spanish law classifies the possession and consumption of narcotics as a serious offense, punishable by fines of between 601 and 30,000 euros, depending on the circumstances.

In Spain, the possession or consumption of narcotic drugs such as marijuana (with THC) in public places or establishments can result in a serious administrative offense that carries fines of between 600 and 30,000 €, depending on the circumstances.

In addition, it is important to consider that, if possession is presumed to be for the purpose of drug trafficking, this situation could be considered a possible criminal offense.

Therefore, in case the police find CBD flowers, and depending on the context, it is possible that you will be denounced by the aforementioned Gag Law. The police report it and, subsequently, the administration will analyze the sample and if it is confirmed to be cannabis, it will sanction.

When a seizure of CBD flowers occurs, the substance is sent to the laboratory for analysis. If it is confirmed to be cannabis, regardless of its THC content, a sanctioning procedure (fine) is initiated.

In Spain, police action in such cases involves issuing a seizure report to the person concerned and sending the substance in question to the laboratory for analysis. In administrative cases (small quantity), it is possible for the laboratory to perform a “qualitative” analysis, i.e. simply confirming that the plant material is indeed cannabis. Without even reporting the THC content of the sample tested. Let us recall that, according to the 1961 United Nations Single Convention on Narcotic Drugs, any type of cannabis, regardless of its THC content, is illegal.

Obviously, carrying the product with you in its original packaging and showing the receipt as proof of purchase will help the authorities understand the situation, but it is no guarantee that you will not be reported. On the internet you can read that if the flowers are sealed they can be considered a collector’s item and therefore not subject to fines, but we have not been able to verify this information and in all likelihood it is not accurate.

Some people have been fined in this way, and have appealed requesting that the percentage of THC be stated. The administration has dismissed the appeal on the grounds that cannabis is considered a narcotic drug, regardless of its THC content. After consulting with lawyers, they tell us that the appeal of the fine is almost always rejected, and that this type of sanctions can only be won in court, with the economic cost that this would imply. So, unfortunately, it seems that the safest thing to do is to pay the fine with a reduction, rather than expose yourself to a lengthy legal process.

Is CBD legal in Spain and Europe?

CBD is a fully legal substance in Europe, including Spain. In 2020, the Court of Justice of the European Union (CJEU) ruled on the legality of CBD and its commercialization in the different European countries in relation to the Kanavape casein which France imposed prison sentences on businessmen for selling a product of the type CBD cartridges for vaping.

Under European Union law, CBD is completely legal and is governed by the provisions relating to the free movement of goods.

The CJEU declared that CBD is not psychoactive and is not classified as a drug, that it is legal in Europe, and that member countries cannot prohibit its sale, as long as the product has been obtained legally. The CJEU ruled that CBD is not considered a narcotic drug and therefore may be subject to the EU’ s free movement of goods provisions . Therefore, a country’s ban on trade in CBD is contrary to Union law and could only be justified on grounds of general interest, such as the protection of public health.

At this point it should be noted that, within the European Union itself, there are different legal limits of THC allowed. For example, in the Czech Republic the limit is 1% THC, 5 times more than that allowed in Spain. This is something to keep in mind if you choose to to travel with CBD to other countries or buy online from other member countries.

How to appeal fines for smoking CBD

When a sanction is unjust or disproportionate, you must file an administrative appeal with the body that imposed the sanction. Each remedy will depend on the circumstances, but, broadly speaking, it is a matter of legally differentiating between two types of cannabis: hemp and marijuana.

We advance you that it is not an easy or fast process, and that you must go to court to win it, with the economic cost derived from the process, which includes the fees of the law firm. You must decide if you prefer to pay the fine with a 50% discount or initiate a process that we do not know if it will be successful.

In Cannactiva we tell you some arguments and evidence that demonstrate the legality of CBD in question. We’ll tell you about it soon! In the meantime, you can browse through the new products in our store:

Cannactiva products are intended for external use. CBD flowers are sold as collector’s items and are not legally intended for consumption. We recommend a responsible use of our products.

En Cannactiva queremos cambiar la perspectiva sobre el cannabis. Te traemos lo mejor de la planta a través de nuestros productos y de los posts que puedes leer en nuestro [...]

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