What is the current Legislation to open a Cannabis Shop and sell CBD Products

On May 9, 2019, the Ministry of the Interior adopted a new directive having as its subject the marketing of hemp and operational guidelines, addressed to all Prefectures, with the aim of countering the sale in authorized stores of cannabis-light, that is, of inflorescences, oil, resins extracted from Sativa Hemp: they are, many, in fact, products that are sold legally, with low content of active ingredient, tetrahydrocannabinol (THC), with a concentration ranging from 0.2 % to 0.6 %.

The directive stipulates that the issue be submitted to the Provincial Committee for Public Order and Safety in the presence of representatives of the Region, Mayors and members of the Judiciary to carry out a “thorough analysis of the phenomenon.”

As is well known, hemp cultivation is, at present, permitted in Italy in compliance with the provisions of Law No. 2421 of December 2, 2016, which rewards its value “as a crop capable of contributing to the reduction of environmental impact in agriculture, the reduction of soil consumption and desertification and the loss of biodiversity, as well as a crop to be used as a substitute for surplus crops and as a rotation crop.”

In particular, the aforementioned provisions prescribe that cultivation can only concern the permitted varieties, which do not fall under the scope of the Consolidated Text of laws on the regulation of narcotic drugs and psychotropic substances, referred to in Presidential Decree No. 309 of October 9, 1990, and that from the cultivated hemp it is possible to obtain only the products punctually indicated in Article 2, paragraph 2, of the same Law No. 242/2016. 

These are, in particular:

• Food and cosmetics produced exclusively in compliance with the disciplines of the respective sectors;
• Semi-finished products, such as fiber, canapulo, powders, wood chips, oils or fuels, for supplies to industries and craft activities of different sectors, including the energy sector;
• Material intended for the practice of green manure;
• Organic material intended for bioengineering works or useful products for green building;
• Material aimed at phyto–purification for the remediation of polluted sites;
• Crops dedicated to educational and demonstration activities as well as research by public or private institutes;
• Cultivation intended for floriculture.

Based on this provision, the Ministry points out that the sale of cannabis derivatives and inflorescences is improperly advertised as permitted by Law No. 242/2016, and there is an exponential growth of the related market, in dedicated or mixed commercial establishments as well as online.

In fact, the purposes of industrial hemp cultivation do not include the production and sale of inflorescences to the public, as they are potentially intended for personal consumption, in significant quantities from a psychotropic and narcotic point of view, through smoking or similar mode of intake.

In this regard, the “ Consiglio Superiore di Sanità “ itself has pointed out that the use of such preparations, erroneously perceived as “legal” and therefore safe from a health point of view, is likely to result in even serious harm to oneself and others (just think of the effects for impaired drivers or pregnant or lactating women), recommending the adoption of measures to prohibit the free sale of such products.

In this direction, the operational activities of law enforcement agencies have consequently been oriented, which have launched significant prevention initiatives in recent months.

The related measures have passed the scrutiny of the Judicial Authority which, on several occasions, has reiterated what has been observed above, namely that the area of application of Law No. 242/2016 is extraneous to the pure and simple sale of hemp derivatives for voluptuary purposes that of no relevance, in point of fact, the inscriptions on the packages, since

 “These are drugs freely put on sale, without any constraint, concretely intended therefore for an equally free use or recreational as you like.“

That said, according to the ministerial indications, the action taken so far must be systematized and further implemented, in light of the investigative findings and recent developments in the sector.

In detail, therefore, the Ministry invites the Prefectures to bring to the attention of the Provincial Committees for Public Order and Security, enlarged to include the participation of representatives of the Region, the Mayors of the largest municipalities and those affected by the presence of the commercial establishments in question, as well as representatives of the judiciary, the need for an in-depth analysis of the phenomenon, which takes into account all the risk factors.

In particular, there, first of all, a punctual reconnaissance of all the establishments and retailers in the area must be arranged, in sharing with the municipal administrations and through the collaboration of the respective local Police Commands and the Desks in charge of issuing the necessary administrative authorizations (SUAP, commerce offices, hygiene and health offices, municipal technical offices).

In carrying out monitoring, special care should be taken to verify the possession of certifications on hygiene, fitness, plant engineering, urban planning and safety, which are required by law in order to operate.

Another aspect to be taken into consideration must be the location of the establishments, with reference to the presence in the vicinity of sensitive places as to the risk of substance consumption, such as schools, hospitals, sports centers, playgrounds, and, more generally, crowded places of greater aggregation, especially youth.

The results of the reconnaissance activity conducted will then be submitted to the evaluations of the same Provincial Committee for Public Order and Security, in the same composition as above, in order to decline an extraordinary program to prevent any prohibited behavior by commercial operators, especially if directed toward the most vulnerable category of adolescents.

Operationally, the Ministry establishes that the Prefectures must first of all include the areas concerned among those to be subjected to attention within the Coordinated Territorial Control Plans, defining with local authorities ad hoc collaborative arrangements for an organic involvement of local police in the relevant activities.

The “observation” services carried out in this way will be able to allow the conduct of special analyses of the products purchased in the establishments under consideration, aimed at averting situations of possession and sale that fall within the sanctioning perimeter of anti-drug legislation.

The pre-eminent reasons of the protection of health and public order endangered by the circulation of such substances should, moreover, be reported to local authorities so that they take them into due consideration in relation to the possible new openings of such commercial establishments, providing for a minimum distance of at least five hundred meters from the places considered to be at greater risk.

A municipal measure along the lines of the one that has already affected gambling halls, taken in the knowledge that the consumption of so-called “soft drugs” is considered by old school anti drug propaganda often a viaticum for the taking of hard ones, and this fake stigma still stands today.

The ministerial circular came amid the expectation for those in the Cannabis Shop sector of the May 31, 2019

date, when the United Sections of the Supreme Court would provide definitive answers following divergences between two Criminal Sections of the Supreme Court related to seizures of products and stores that sold cannabis-light.

Law No. 242/2016 established that particular varieties of this plant – those listed in the Catalog referred to in Article 17 of Council Directive 2002/53/EC of June 13, 2002 – do not fall within the scope of the Consolidated Law on Narcotic Drugs or Psychotropic Substances and can be grown freely, without the need for authorization, provided that the cultivated varieties do not exceed 0.6 percent THC.

But the same law does not explicitly deal with the marketing of such a product, which, according to the Supreme Court, does not integrate the extremes of criminally relevant conduct; and the judges of legitimacy, concluding that fumus delicti did not exist, annulled the order that had previously ordered the preventive seizure.

May 31, 2019 arrived, and so did the ruling of the United Sections of the Supreme Court.

The Supreme Court was called upon to decide whether or not conduct other than the cultivation of hemp of the varieties listed in the catalog indicated in Article 1, paragraph 2, Law No. 242 of December 2, 2016, and, in particular, the commercialization of cannabis sativa L, falls, and if so, within what limits, if any, of the scope of applicability of the aforementioned law and is, therefore, criminally irrelevant under that legislation.

The United Sections of the Supreme Court established the following principle of law:

“The marketing of cannabis sativa L. and, in particular, of leaves, inflorescences, oil, resin, obtained from the cultivation of the aforementioned variety of hemp, does not fall within the scope of application of Law No. 242 of 2016, which qualifies as lawful only the activity of cultivation of hemp of the varieties listed in the Common Catalog of Agricultural Plant Species, pursuant to Article 17 of Council Directive 2002/53/EC of June 13, 2002, and which lists exhaustively the derivatives from the aforementioned cultivation that may be marketed.”

Operationally, the Supreme Court concludes by ruling that:

“…therefore, the conduct of transfer, sale and, in general, the marketing to the public, for any reason whatsoever, of products derived from the cultivation of cannabis sativa L., unless such products are in concrete terms devoid of drugging efficacy, integrate the crime referred to in Article 73, paragraphs 1 and 4, Presidential Decree No. 309 / 1990.”

The United Sections’ decision now definitively resolves the issue, clarifying that it is not lawful to sell, in any capacity, cannabis-derived products containing any percentage of THC.

It follows that all packages of inflorescences, leaves, oil and resin for sale in various cannabis shop and tobacco shop, that are over 0.6 % THC , these products become illicit and therefore subject to criminal seizure.