Latham & Watkins is making its mark on the booming field of cannabis law in Europe, securing victory in a landmark case before the French Court of Appeals over the marketing of CBD-based products.
Confirming a November 2020 decision by the Court of Justice of the European Union, the appeals court in Aix-en-Provence last week dismissed all criminal charges against Latham client Antonin Cohen, co-director of the vaping products company KanaVape.
The French court’s action upheld the EU ruling that member states may not ban the marketing of cannabidiol, or CBD, a non-psychotropic chemical present in the Cannabis sativa plant, when extracted from the entire plant and not solely from its fiber and seeds.
The Appeals Court ruling means that France must change its regulations in order to provide an “adequate and proportionate framework” for the marketing of CBD extracted from the whole plant.
A draft order modifying the current rules has already been submitted to the European Commission and is under review.
Latham partner Eveline Van Keymeulen represented Cohen. She joined the firm in January from Allen & Overy, where she practiced for seven years, rising to counsel and head of the firm’s life sciences regulatory practice in Paris.
The fundamental issue in the case springs from a 1961 UN convention that was designed to regulate industrial uses of Cannabis sativa, also known as hemp, which at the time was primarily used in the production of paper and cloth products.
“The convention was erroneously interpreted to mean that only fiber and seeds could be used, when in fact those were the parts of the plant that were most important for that industry,” Van Keymeulen said.
This judgment, she said, indicates that laws and regulations should now start to evolve to cover new industries, like CBD products, that have developed around the use of the entire plant or other parts not specified 60 years ago.
It also means that the CBD market, which currently exists in a regulatory gray area in France, can now be properly regulated, she said.
“The court accepted evidence from competent authorities that lead to the same conclusion: CBD is not a narcotic, and there is no reason at this stage to have a total ban to protect public health,” Van Keymeulen said.
That finding, she added, opens the way for authorities to “issue regulations that are fit for purpose” on the composition of products, their dosage, and labeling.
“These are regulations that will benefit both producers and consumers,” Van Keymeulen said.
The CBD market in Europe is growing rapidly, largely because of the adoption of CBD-infused products in industries such as pharmaceuticals, personal care and cosmetics, in addition to medical applications.
Annual sales of CBD products in Europe total about €450 million, according to the market research firm Orian Research.