A landmark judgment from the UK Court of Appeal has set a new legal precedent for UK businesses importing and selling low-THC or CBD hemp flower.
The Court of Appeal made it clear that it did not consider hemp flower with a THC content of less than 0.2% to be a “narcotic”.
Despite this, due to the timing and complexity of the case, the UK is far from definitive freedom to import and sell low-THC flowers.
As Robert Jappie, Life Sciences Associate at Fieldfisher, explained to Business of Cannabis: “It doesn’t give these companies the green light to go ahead and trade openly, but, at the same time, I think it significantly reduces their risk of criminal prosecution.”
The case
Uncle Herba UK online CBD flower retailer run by Eleanor Margiotta and Dean Taylor, had a consignment of CBD flower imported from Italy intercepted by customs in September 2019.
A year later, the owners were arrested and charged with “knowingly participating in the fraudulent evasion of a ban on the importation of goods”, as well as “participating in the supply of cannabis to others”, effectively accusing them of being drug traffickers.
The charges, which would have been ‘devastating’ for the owners, resulting in the closure of the store, were disputed by Ms Margiotta, who represented herself in court after being initially refused representation.
UK police forces classify all Cannabis Sativa flowers, regardless of their THC content, as a controlled substance, a piece of drug abuse law that has long plagued the CBD and hemp industries.
Despite this, Ms Margiotta managed to argue that under EU law, which at the time prevailed over UK law, it was illegal to impose restrictions on the movement of Cannabis Sativa, or hemp, with a THC level of less than 0.2%, since it was an agricultural product.
THE Misuse of Drugs Act was therefore considered a restriction on the movement of hemp, and the Crown Court ruled that no offense had been committed.
THE Crown Prosecution Service (CPS) then appealed against this decision, the decision then being brought before the Court of Appeal, the highest court in the country, where the decision was upheld.
As Mr. Jappie explained: “The judgment has now established a precedent. Normally, one cannot rely solely on a decision of the Crown Courtbut the fact that it was taken to the Court of Appeal and reconsidered and reaffirmed means that it is now a precedent that other companies and people can build on”.
Implications and limitations
Key to Ms Margiotta’s success is that the deals took place before the UK officially left the EU on January 31, 2020, when EU free movement of goods laws still applied.
This means that cannabis companies that have been or are currently being investigated for activities carried out after the deadline “will not be able to make the same argument”.
Mr Jappie explained: “The UK is not a member of the EU. The freedom of movement of persons, the freedom of movement of capital and the freedom of movement of goods therefore do not apply, and this is indisputable”.
However, companies in a similar situation who have been charged or are under investigation for offenses committed before the deadline can now say with confidence that they should never have been convicted or pleaded guilty, because of this new ruling.
A potentially powerful decision
Although he advised CBD sellers not to get carried away and take the move as a sign that they can trade freely, Mr Jappie said he believed the decision was still “potentially very powerful”.
He added that “the fact is that the courts have confirmed that CBD flower does not contain enough THC to be considered a narcotic and therefore the government should not control it as a narcotic.”
“I think this will cause considerable problems for the CPS in similar cases in the future. When deciding on a charge, a two-step test must be conducted. Is there sufficient evidence to prosecute and is it in the public interest to prosecute? And if the product is considered not to be a narcotic and people are not taking drugs with it, then where is the public interest in prosecuting these people as drug traffickers? »
“If I were currently being investigated or prosecuted for offenses related to CBD flowers, I would ask my lawyers to pressure the CPS to reconsider its position in light of the Court of Appeal ruling. »
“The Court of Appeal asked the following question: why are we using narcotics legislation to prohibit a product which is not a narcotic?
“It’s potentially very powerful. It could force the government to act and give some kind of statement on why it is currently acting in this way, and could result in a decision similar to that of France”.
