Spain in favour of hemp and CBD with clear regulation
The Congress of Deputies urges the government to regulate hemp and CBD flower
On 22 March 2023, the Congress of Deputies gave the go-ahead to a proposal that aims to clarify, and reach consensus on, the legality and permitted uses of hemp once and for all. This non-legislative motion is an initiative created by CannabisHub, of which Cannactiva is a member, and was presented in the Congress of Deputies by Podemos, ERC (Esquerra Republicana) and Bildu. You can see the proposal by clicking here.
In short, the proposal addresses the great confusion that exists when it comes to determining whether or not hemp is cannabis. Because of this confusion, over the previous three years there have been countless seizures of hemp crops, as well as in hemp and CBD shops. However, the Court of Justice of the European Union already made it clear in 2020 that CBD extracted from the whole hemp plant, including the flower, is not a narcotic drug.
But is CBD legal in Spain or not?
Hemp growing has been booming for almost a decade now, thanks to science turning its attention to the active compound contained in the hemp flower: CBD. So much so that in 2018 the World Health Organization published a report on the benefits of CBD and its non-toxicity for human consumption. However, its strong resemblance to the cannabis plant creates a lot of confusion, to the point that in 2021 Spain's various regions began to notice a very large increase in hemp crops planted by a great many farmers from different parts of the country. And given how alike hemp and cannabis are, in many cases the authorities chose to seize the crops because of the uncertainty about their legality.
In Spain, there is no clear regulation on hemp and CBD, so farmers, businesses and users of hemp and CBD all suffer the consequences of legal uncertainty. In addition, some public authorities show a certain prohibitionist inertia that hinders the development of a fast-growing market, leaving Spanish operators uncompetitive and at a clear disadvantage compared with their European neighbours. To find out more about the subject, see:
What does Europe say about this?
In November 2020, the Court of Justice of the European Union ruled that the use of the hemp plant is not limited to its fibres and seeds, but extends to the whole plant, which bears flowers in its aerial parts, and that is where the resin used to extract CBD is found. It therefore made clear that CBD is not a narcotic drug and that a member state cannot prohibit the marketing of CBD lawfully produced in another member state. To get there, the Court interpreted the 1961 Single Convention in good faith and in the light of its purpose, as required by the 1969 Vienna Convention on the Law of Treaties. And by that same good-faith reading, a hemp flower with an insignificant amount of THC is not a narcotic drug either, just as the Single Convention excludes from control the flowering tops from which the resin has been extracted. Neither extracted CBD nor a CBD flower with no psychoactive effect is a narcotic drug. Added to this are the free movement of goods and mutual recognition between member states, on which the ruling itself relies: when an EU country allows a product, as the Czech Republic or France do with hemp flower, the others can only restrict it if it poses a real risk to public health (Article 36 of the Treaty on the Functioning of the EU), and that is not the case with a hemp flower with no psychoactive effect.
CannabisHub decided to take action to shed light on the existing problem. Specifically, it presented a non-legislative motion together with Podemos, ERC and Bildu, which was put before the Agriculture Committee of the Congress of Deputies on 22 March 2023. The PSOE, which currently governs Spain, has accepted this proposal and amended it.
What are the points of the hemp non-legislative motion?
The initiative amended by the PSOE in the Congress of Deputies urges the government to make progress on the regulation of industrial hemp, providing legal certainty for the production, marketing and consumption of products derived from it, while respecting the powers of the autonomous communities and the principle of subsidiarity in matters of public safety, health and agriculture.
In addition, the AEMPS is asked to state its position and the possible consequences of non-compliance in relation to the CJEU ruling of 19 November 2020. It also sets out a limit on the percentage of THC in a future regulation of industrial hemp, ensuring the absence of narcotic effects, as well as higher crop yields and sustainability in line with the European Green Deal.
Another important point of the proposal is the clarification of which authority is competent for hemp growing, both for its traditional uses and for the production and trade of all parts of the plant, including the non-narcotic flowering tops for sale or for the extraction of non-narcotic cannabinoids, such as CBD.
Congress will also keep an eye on the progress being made at European level to put in place a legal framework for all hemp-derived foods, including those containing CBD and other cannabinoids that have no narcotic effect. Finally, it proposes harmonising the inspection, control and analysis of crops of hemp plant derivatives through the competent authorities.
In conclusion, this proposal is a big step towards removing legal uncertainty for farmers and traders of hemp products and CBD derivatives in Spain. Regulation is yet to come, but the green light given in Congress on 22 March 2023 is highly significant.
This will help the hemp sector grow as it has in other European Union countries and further boost the benefits that hemp brings us, both in terms of sustainability, thanks to its environmental advantages, and socially, thanks to its benefits for human beings.
