The legality of C.B.D. in Spanish Law
1. International legislation outside the EU.
There are two main international treaties that control narcotic substances, including cannabis: the Single Convention on Narcotic Drugs of 1961 and the Convention on Psychotropic Substances of 1971. Although the Single Convention on Narcotic Drugs does not make any specific reference to C.B.D., it does contain references to the cannabis plant of which, as we have stated above, C.B.D. is one of the main cannabinoids. In this sense, art. 28.2 of the Convention states that “This Convention shall not apply to the cultivation of the cannabis plant intended exclusively for industrial (fibre and seeds) or horticultural purposes”. Article 1(b) of the Convention states that “cannabis means the flowering or fruiting tops of the cannabis plant (other than seeds and leaves not attached to the tops) from which the resin has not been extracted, by whatever name called”, and Article 1(c) states that “cannabis means the flowering or fruiting tops of the cannabis plant (other than seeds and leaves not attached to the tops) from which the resin has not been extracted, by whatever name called”, while Article 1(d) states that “cannabis means the flowering or fruiting tops of the cannabis plant, by whatever name called”. 1(c) states that “Cannabis plant means any plant of the genus cannabis” and, finally, Art. 1(d) defines “Cannabis resin means the separated, crude, purified resin obtained from the cannabis plant”.
The 1971 Convention, which refers exclusively to active ingredients, does not include C.B.D. in any of its Schedules. This Convention does not control the cannabis plant as such, but only the T.H.C. molecule and other synthetic molecules.
The provisions of the two treaties are also reflected in the UNODC Protocol ST/NAR 40 on Recommended Methods for the Identification and Analysis of Cannabis and Cannabis Products. The United Nations Office on Drugs and Organised Crime states in that Protocol that, in relation to industrial cannabis (para. 3.7): “Industrial cannabis (industrial hashish) comprises several varieties of Cannabis sativa L. obtained for agricultural and industrial uses. They are cultivated for their seeds and fibres. Industrial cannabis is characterised by its low THC content and high concentration of cannabidiol (CBD). In most European countries, the current maximum legally permitted concentration for cultivation is 0.2 per cent THC (0.3 per cent in Canada). The ratio between CBD and THC concentrations is higher than 1. Many countries have “lists of approved varieties”. Those whose THC content is clearly above the legally acceptable values are removed from these lists. Harvesting of the fibres takes place at the end of flowering of the female plants and before the seeds are formed.
In relation to the above, plant material obtained from cultivation, processing and treatment operations of the plant product of the Cannabis sativa L. plant with up to 0.2 % THC for industrial purposes should be outside any conduct with possible criminal implications. This is because cannabis with less than 0.2% THC is expressly excluded from drug control legislation, and with it, all operations linked to its cultivation or further processing for the purpose of preparing the plant substance for horticultural purposes.
2. Community legislation.
In accordance with EU regulations, in order for a crop of Cannabis Sativa L to be recognised as non-controlled industrial hemp, we must refer to Article 32.6 of Regulation 1307/2013 (EU), according to which “Areas dedicated to the production of hemp will only be admissible hectares if the varieties used have a tetrahydrocannabinol content of no more than 0.2%”.
The characteristics that a Cannabis sativa L. crop must have in order to be recognised as a non-controlled industrial hemp crop are explained in the European regulations that provide for the cultivation of hemp for industrial purposes, setting a maximum THC concentration for obtaining agricultural subsidies at 0.2 THC.
The control regime is laid down in Commission Implementing Regulation (EU) No 809/2014 of 17 July 2014 laying down detailed rules for the implementation of Regulation (EU) No 1306/2013 of the European Parliament and of the Council as regards the integrated administration and control system, rural development measures and cross-compliance.
And the methods of analysis are determined in Commission Delegated Regulation (EU) 2017/1155 of 15 February 2017 amending Delegated Regulation (EU) No 639/2014 as regards control measures related to the cultivation of hemp.
The varieties that may be grown are the varieties certified by the European Union Catalogue contained in the Common Catalogue of Agricultural Plant Species of the European Commission published in the Official Journal of the European Union on 11 January 2019 in its 37th edition and updated and completed on 5 February 2.021.
3. Internal regulation.
In the Spanish state, the applicable legislation has a blurred outline due to the legislator’s unwillingness to undertake a comprehensive regulation of cannabis. In this respect, we can only highlight a series of non-legislative propositions, fundamentally approved in the autonomous parliaments in relation to social consumption clubs, without addressing, beyond recreational consumption, the commercial aspect.
The current legal framework is based on the International Conventions that control narcotic substances, Protocol ST/NAR 40 of the United Nations Office on Drugs and Organised Crime, Law 17/1967, of 8 April, which updates the current regulations on narcotics and adapts them to the provisions of the 1961 United Nations Convention and certain Community regulations.
In Spain, Law 17/1967 of 8 April 1967 updating the current rules on narcotic drugs and adapting them to the 1961 United Nations Convention on the cultivation and production of plants intended for the production of narcotic drugs or which may be used as such, states that they shall be authorised by the Narcotics Control Service, and that they may not be carried out without the relevant authorisation, stating who is authorised to carry out the cultivation, where it is to be carried out, for how long and the specific product to be cultivated. However, Article 9 of the aforementioned law also states that “The above provisions shall not apply to the cultivation of the “cannabis” plant intended for industrial purposes, provided that it lacks the active narcotic ingredient”.
Likewise, Royal Decree 1729/1999 of 12 November 1999 regulates the obtaining of subsidies for the cultivation of hemp and flax, but does not establish a specific percentage of THC that allows the cultivation of these industrial varieties. In any case, the Royal Decree, as well as the catalogue of agricultural plants revised annually by the European Commission, sets out the varieties of cannabis seeds that are allowed to be cultivated due to their THC percentages of less than 0.2%.
For the development of industrial hemp cultivation, the seeds to be used are certified by the European Union and are established in the Common Catalogue of Agricultural Plant Species of the European Commission published in the Official Journal of the European Union on 11 January 2019 in its 37th edition and updated and completed on 5 February 2.021.
Reinforcing these approaches, the A.E.M.P.S. itself, in two reports (24 August 2004 and 27 June 2013) made to contribute to judicial cases, affirms that cannabis with percentages not exceeding 0.2% THC has no pharmacological effects and, therefore, cannot be considered narcotic drugs.
In the Report of 27 June 2013, in response to the judicial body’s request to report on “the percentages of THC below which it cannot be considered a narcotic. below which they cannot be considered to be psychoactive cannabis” signed by the Head of the Narcotics and Psychotropic Substances Area states that “Cannabis plants with a delta-9-tetrahydrocannabinol (THC) content of less than 0, 2% are considered to have no pharmacological activity and are therefore considered to be industrial hemp, on the basis of Council Regulation (EC) No 1420/98 of 26 June 1998 amending Regulation (EEC) No 619/71 laying down general rules for granting aid for flax and hemp”.
For her part, in the Report of 24 August 2004, the Head of Service of the A.E.M.P.S. states: “Cannabis with a concentration in Delta nine tetrahydrocannabinol -THC- of 0.2 or less should not be considered as included in Schedules I and IV of the 1961 Convention – Single Convention on Narcotic Drugs. Based on this and on Council Regulation (EU) 1672/2000 of 27 July 2000, which allows economic aid for industrial hemp, intended for fibre production, if the varieties concerned have a THC content not exceeding 0.2%, that, below this concentration or richness, cultivation would not be prohibited, because it would not contain the minimum psychoactive dose capable of causing harm to the health of the consumer and could be included in the schedules of the Convention”.
It is therefore essential that anyone intending to engage in the cultivation, purchase and storage, drying and conditioning of the plant product obtained from industrial hemp must come from one of the certified seed varieties listed in the Catalogue, and it is essential to check that the hemp does not exceed the 0.2% THC percentage.
In this way, the aim is to avoid any possibility of incurring in a criminal offence that may result in criminal liability both in the case of those involved in cultivation, acquisition and storage, drying and conditioning, and in the case of companies that may be involved in commercial trafficking activities.
In this respect, Articles 359 et seq. of the Criminal Code regulate offences against public health, and these criminal consequences constitute the main risks derived from the production of CBD.
More specifically, Article 368 is the basic offence that punishes the promotion, encouragement and facilitation of substances that do not cause serious harm to health, which includes cannabis, as this article is a blank criminal law that is completed on the basis of the international conventions referred to above.
Specifically, at the criminal level, the risk involved in carrying out activities such as growing, drying, conditioning and selling the product obtained from a licit cultivation of industrial hemp may be the application of Articles 368, 369.5 and 369 BIS C.P., all of which relate to the crime against public health (cultivation and trafficking of drugs). Likewise, the existence of risk can also be noted in the assessment of the offences of 570 C.P. by criminal organisation or group, above all in the first moments of the start of the police investigation, which tends to be considered applicable when the investigation is initiated against more than two linked persons.
For the companies involved when they are responsible for crimes related to drug trafficking, the main risks are the imposition of high fines as set out in art. 31.bis of the Criminal Code, which will also be subject to criminal investigation after the reform of the Criminal Code in 2015.
At the administrative-sanctioning level, Organic Law 4/2015 on the Protection of Public Safety imposes fines ranging from 601 to 30,000 euros on anyone who carries out acts of cannabis cultivation (in this specific case we should understand the drying of cannabis as an activity immersed in the cannabis production process) that are visible from the public highway. In the event that an administrative sanctioning procedure is initiated in parallel to a criminal procedure, the administrative procedure will be suspended until the judicial decision that ends the criminal procedure is issued.
4. Jurisprudence.
As for the case law related to cannabis, as explained above, it was fundamentally limited to Provincial Courts and Criminal Courts since, given the size of the custodial sentences to be imposed in the cases, which were so small, the possibility of the Supreme Court being able to hear these cases on appeal was limited.
In this respect, we can highlight two lines of jurisprudence, one which considers that it is indifferent to determine the percentage of T.H.C. to identify industrial hemp – in line with the majority thesis of the Supreme Court -, and another, which could be considered a minority, which establishes the need to determine the percentage of T.H.C. as its indetermination should lead to the acquittal of the accused, as a percentage of T.H.C. of less than 0.2% is not controlled.
We believe that the second line of jurisprudence would be more in line with scientific reality and with the provisions of the International Protocols, as the determination of the percentage of the psychoactive principle is not a trivial matter, as there are percentages that are not internationally controlled.
Thus, it is necessary to take into account that the percentage of T.H.C. should be determined, as the lack of determination of this percentage, together with the existence of such low percentages that do not affect health in any way, would mean that the legal right protected by the crime of public health is not affected. Beyond the lack of determination, the presence of a low percentage of T.H.C. means that it cannot be said that we are not dealing with a substance that can be considered a drug.
Without prejudice to the above, it has also been defined by case law that the minimum percentage above which it is understood that health is affected is a concentration of 1% of T.H.C., which is the minimum psychoactive dose that does not cause any harm, being the concentration above which the effects of the substance are felt in the organism. This is an extension of the limit of 0.2% referred to above, since the effects of the substances are felt from what is considered to be the minimum psychoactive dose.
In line with the majority thesis of the Supreme Court, there are many rulings that advocate indifference in determining the percentage of T.H.C. to distinguish whether we are dealing with marijuana or industrial hemp, having to take into account the specific circumstances of the case to determine acquittal or conviction.
Thus, by way of example, in the Judgment of the 2nd Section of the Provincial Court of Pontevedra no. 168/2018 of 19 October 2018, despite the fact that the analytical report carried out by the Health Expert does not determine the percentage of T.H.C. in the substance seized, it is stated that it cannot be maintained that what was seized was industrial hemp, given that the substance seized was intended for consumption by the members of the members of the Provincial Court of Pontevedra. of the substance seized, it is stated that it cannot be maintained that what was seized was industrial hemp, given that, as the substance seized was intended for the consumption of the members of an association of cannabis consumers, the purpose of the cultivation was clearly recreational.
In the same sense, the Judgment of the Criminal Court number 1 of Teruel no. 152/2017 of 10 October 2017, which, despite the indeterminate percentage of T.H.C., given the circumstances surrounding the case, does not agree that the cultivation could have therapeutic purposes, but rather that everything was surrounded by a context of recreational or recreational consumption, the determined quantification of the psychoactive molecule being indifferent and the mere statement of the expert informant being sufficient.
Notwithstanding the above, the Supreme Court itself, despite the majority position maintained in its rulings, on 21 May 2020 handed down Ruling no. 205/2020 in which a change of position seems to be in sight. In this regard, this ruling recognises the possibility of obtaining subsidies for the cultivation of industrial hemp, under the condition that varieties with a T.H.C. content of no more than 0.2% are used. Furthermore, the judgment also indicates that this percentage is the one established by the UNDOC ST/NAR/40 Protocol as being the usual percentage in the stalks of the cannabis plant.
Although this judgment appears to maintain a novel position in the Second Chamber, this is not the case with respect to the lesser case law, as there were judgments that already pointed in a direction contrary to that of the majority. However, they have not been generalised despite the fact that, in our opinion, they would be more in line with the scientific reality of the plant, but also with the legal right protected by the crime of public health. In the Judgment of the Supreme Court Chamber no. 726/2015 of 24 November, it was held that only a substance that is capable of producing its own effects should be considered a toxic drug for criminal purposes, therefore, a sensu contrario, if it does not produce any effect on the organism, we would not be in the presence of a toxic drug or narcotic substance.
Prior to this, the Judgement of the 2nd Chamber of the Supreme Court no. 154/2007 of 1 March 2007 considers that the determination of THC is irrelevant, leaving the door open to the atypical nature of percentages lower than 0.2% of THC, and therefore, that they are not considered to be criminal. This judgement, like other previous judgements, erroneously considers that the minimum percentage of THC corresponding to industrial hemp is 2%, when in fact it is 0.2%.
In short, according to the jurisprudence set out above, in addition to the fact that the product obtained does not exceed the 0.2% THC ratio for those who decide to grow industrial hemp, a whole series of administrative formalities must also be complied with in order to differentiate it from the cultivation of “narcotic” cannabis. This is because the THC percentage limit, despite being an essential requirement for the lawfulness of cultivation, is not considered by the Supreme Court as an argument for acquittal in the case of criminal proceedings.
What is really curious, as we shall see, is that jurisprudence has come to consider it unnecessary not to determine the percentage of T.H.C. when dealing with cannabis sativa plants, considering that the whole plant is internationally controlled; however, when dealing with other narcotic substances or toxic drugs, it is necessary to determine the controlled molecule in order to determine that we are dealing with a substance that produces its own effects, such as, for example, cocaine, heroin, etc.
Thus, it is not enough to comply with all the precautions regarding the cultivation procedure, but the precautions regarding the operations of acquisition, storage, drying, preparation, packaging and sale of the industrial hemp plant product should also be maintained, in order to prove the traceability of the plant material obtained.
“This article is an excerpt from Alejandro Jover Jurado’s Master’s Thesis”