Section 2 of the Provincial Court of Bizkaia has filed a complaint with the Public Prosecutor’s Office against a CBD store in Bilbao, accusing it of alleged crime against public health for alleged drug trafficking in the sale of its products containing CBD. CBD, or cannabidiol, is a chemical substance present in marijuana, which can be legally marketed in Spain provided that its percentage of THC (tetrahydrocannabinol, the psychoactive component of the plant that produces the “high”) does not exceed the threshold of 0. .5% set by law. However, on many occasions, those who sell this type of product feel persecuted against them, in addition to the stigmatization of society.
“This sentence is pioneering,” Joan Bertomeu Castelló, a lawyer at Brotsanbert, a Valencian law firm specializing in cannabis, who led the defense of the Bilbao company, told the newspaper. “It prevented a company registered with the Public Treasury, which pays its taxes and its directors, from being tried for drug trafficking, despite being an establishment open to the public. This order prevented them from going to court because the judge understood that the products they sell are not considered drugs because they lack THC and contain a high level of CBD. It is considered industrial hemp and is not psychoactive,” the lawyer said.
The Court of Justice of the European Union (CJEU), in a judgment of 19 November 2020, stated that “unlike tetrahydrocannabinol (commonly known as THC), another component of hemp, CBD does not appear to have psychotropic effects or harmful effects on human health”, referring to current scientific knowledge. To define the concept of “drug”, the European Court refers to the definitions of the Single Convention on Narcotic Drugs (1961) and the Convention on Psychotropic Substances (1971) of the United Nations. Therefore, to qualify CBD as a “narcotic”, considers the CJEU, “would be contrary to the general spirit of this convention”, the aim of which is to preserve “physical health”.
However, the interpretation made by the Office of the Anti-Drug Prosecutor, referring to the United Nations Single Convention on Narcotic Drugs of 1961, is that any “bud”, regardless of the proportion of THC it contains, is considered a narcotic, with the exception of authorized narcotic plantations.
The judgment of the Provincial Court of Bizkaia concludes that, after the analysis carried out on the products sold in the store, “by the Health Department of the Government Subdelegation of Gipuzkoa, it was only established in the analysis carried out on the substances used that all the pressed vegetables and the powder were cannabis and cannabis resin with a THC (tetrahydrocannabinol) content of less than 0.5%”, therefore they are legal products.
One of the keys to obtaining this sentence lies in the documentary evidence provided by the defense. It emerges that the seized substances were acquired from companies located in Italy and are plants and seeds included in the European Union’s common catalog of hemp seeds that can be cultivated because they lack psychoactive content. “The analytical tests carried out in the laboratories provided by the supplying companies show that those analyzed show total percentages of THC on the supplied substances of CBD, CBN, CBG, THC and other plant compounds of 0.15, 0.19, 0. .12, 0.16, 0.11, 0.17, 0.16, 0.27 and 0.18%,” the order states. Therefore, less than 0.5 is considered illegal.
“This is a precedent, because it clearly shows that it is not a drug and that people who carry out this type of business cannot be considered traffickers either. On the other hand, it is also relevant that it has been recognized at the technical level that the psychoactivity index must be applied to differentiate what is hemp from what is marijuana. The Prosecutor’s Office is based in a biased and partial manner, without carrying out a detailed analysis of the matter, on the fact that each bud is marijuana and therefore uses the jurisprudence of the Supreme Court applicable to marijuana for this type of product. What the Provincial Court has done in this case is to clarify things, to say that this jurisprudence exists on marijuana, but it adds that it specifically concerns marijuana and not this type of product. “The Court of Justice of the European Union has been saying for some time that when we talk about industrial hemp buds and CBD products, we cannot treat them as narcotics and this ruling uses that to not consider this case as a crime of drug trafficking,” explains the lawyer.
As he acknowledges in his work as a lawyer specializing in this type of case, despite the fact that stores selling CBD products, such as the one in Bilbao, are located throughout Spain, “the persecution they suffer is very great.” “The prosecution interprets that there is no difference between the drug depending on whether it is high or not, but simply because of its form, it considers that it is the same thing,” he laments.
Seniors, your main customers
The store manager, who prefers not to give his name because this is not the only legal procedure against him, admits to this newspaper that he is “satisfied” with the result after this situation of “legal, vital and economic instability.” . “who has suffered. “We are young entrepreneurs. We are convinced that progress will continue in this direction. Some of our main customers are elderly people who use our balms to relieve muscle and joint pain, especially in cases of osteoarthritis. In addition, our oils help to alleviate outbreaks of atopic dermatitis,” he acknowledges.
In fact, as he explains, some of his products are sold in distribution chains and herbalists across the country. However, these types of chains do not suffer the “stigma and persecution” that CBD stores suffer, he laments. “One of the main goals we had when we created the company was to deconstruct the conception of the hemp plant and its uses, which is surrounded by stigma and persecution throughout history that has managed to change the CBD molecule,” he concludes.
