On 5/30/19, the Court of Cassation, United Criminal Sections, adopted a decision regarding the application of the Consolidated Narcotics Act (TUS) to the sale of that industrial hemp which a state law aims to promote precisely because it lacks psychotropic effects. Amazing is just the ‘provisional interpretation no. 15‘ of Rome’s togati who seem to have taken ‘whistles for whistles’. While we wait to read the full text of the ruling, an initial insight.
Law 242/16, promotion of the industrial hemp supply chain
Law 2.12.16 no. 242 – ‘Provisions to promote the cultivation and agro-industrial supply chain of hemp‘ – aims to support and promote the cultivation and ‘supply chain of hemp (Cannabis sativa L.) as a crop that can contribute to the reduction of environmental impact in agriculture, reduction of soil consumption and desertification, and loss of biodiversity, as well as a crop to be used as a possible substitute for surplus crops and as a rotation crop.” (1)
The varieties of hemp that Law 242/16 aspires to promote are the ‘accepted varieties listed in the Common Catalogue of Varieties of Agricultural Plant Species, pursuant to Article 17 of Council Directive 2002/53/EC of June 13, 2002, which
do not fall within the scope of the Consolidated Text of Laws relating to the regulation of narcotic drugs
and psychotropic substances, prevention, treatment and rehabilitation of related drug addiction states, referred to in Presidential Decree Oct. 9, 1990, no. 309‘ (TUS). (2)
‘Support and promotion concern the cultivation of finalized hemp:
(a) to cultivation and processing;
(b) to the encouragement of the use and
final consumption of semi-finished products of hemp
from priority local supply chains;
(c) to the development of integrated territorial supply chains that enhance research results and pursue local integration and real economic and environmental sustainability;
(d) to the
production of food, cosmetics
, biodegradable raw materials and innovative semi-finished products for industries in different sectors;
(e) to the implementation of bioengineering works, land reclamation, educational and research activities.” (3)
Industrial hemp, permitted cultivation and production. In Europe and Italy
Growing the varieties of hemp listed in the register of botanical species allowed in the Single European Catalogue is a peaceful, uncontested right to anyone. Farms and nurseries, farmers and gardeners, individuals. In fields and greenhouse, garden or potted, hydroponic crops. In Europe as in Italy, where the cultivation of the above varieties-whose genetics have been selected for the specific purpose of ensuring the substantial absence of THC (tetra hydro-cannabinol, a psychotropic substance instead found in other plant species)-‘is permitted without the need for authorization.’ (4)
The productions explicitly allowed by Law 242/16, from the aforementioned hemp varieties, are multiple:
‘
(a) food and cosmetics
produced exclusively in accordance with the disciplines of the respective fields;
(b) semi-finished products
, such as fiber, hemp, powders, wood chips, oils or fuels, for supplies to industries and handicrafts in various sectors, including energy;
(c) material intended for green manure practice;
(d) organic material intended for bioengineering work or products useful for green building;
(e) material aimed at phytodepuration for the remediation of polluted sites;
(f) crops dedicated to educational and demonstration as well as research activities by public or private institutions;
(g) crops intended for floriculture.” (5)
The Ministry of Agriculture
, food and forestry – by circular 22.5.18,
Clarification on the application of Law Dec. 2, 2016, no. 242
– Reaffirmed the permissibility of cultivation of varieties listed in the ‘
Common plant catalogue of varieties of agricultural plant species
‘. Specifying the THC limits to be kept under control in the agricultural phase, for the specific purpose of ensuring the exclusion of plants and their derivatives from the scope of the TUS (Testo Unico Stupacenti), as in fact provided by Law 242/16.
The Ministry of Health
notified the European Commission on 30.10.18 of the draft ‘
Regulation setting maximum levels of THC (tetrahydrocannabinol) in foodstuffs”
‘. The measure, based on special advice from the Istituto Superiore di Sanità (ISS), indicates the THC limits to be allowed on ‘
seeds, flour obtained from seeds, oil obtained from seeds’
derived from ‘
hemp for food use’
or ‘hemp’, Cannabis sativa L. plant meeting the requirements of Art. 32(6) of Reg. 1307/2013′. Otherwise called ‘industrial hemp’.
Regulatory loopholes and bad policy in the service of
Big Pharma
Herbal food teas based on inflorescences of permitted hemp species have ‘curiously’ escaped the aforementioned ministerial circulars. The administration had to go along with government policy, which did not allow exposure on an issue that the more boorish and superficial generalist press would certainly have misinterpreted. In any case, the use of inflorescences in the preparation of food teas is evidently in accordance with current European law. The writer has provided some guidance on the so-called ‘.
herbal tea cutting
‘, highlighting the practices to be followed to ensure its lawfulness, food safety and proper consumer information.
At the European level, Big Pharma is trying to win the exclusive use of the most valuable derivatives of the Cannabis Sativa L. So much so that the European Commission – between December 2018 and April 2019 – made no less than three turns on the catalogs of ‘Novel Food‘ and cosmetic ingredients (CosIng). The writer reported an abuse of office by officials in Brussels (at DG Grow, Unit D4). Who in fact, as a result of the very complaint, turned the tables. And then they changed them again, at the obvious urging of the lobbyists of
Big Pharma
.
The European Commission has reached the paradox of affirming the legitimacy of using synthetic cannabidiol (CBD), in cosmetics, but not also that naturally extracted from the plant. An interpretation that serves the usual well-known-as well as having no legal value (6)-and yet is capable of causing serious harm to hemp farmers and processors in Europe. Instead, the lapsed European Parliament adopted a resolution ‘on the use of cannabis for medicinal purposes‘ in Strasbourg on 13.4.19. Where the dystopian scenario theorized by pharmaceutical giants unravels. MEPs acknowledged established scientific evidence regarding the neuroprotective and therapeutic effects of the CBD, ruling out any suggestion of its toxicity. And yet they suggested that the marketing of the miraculous extracts be reserved for the oligarchs of Big Pharma. Thus excluding farmers and food processors.
The political mischief also showed itself in Italy when Matteo Salvini – in the run-up to the last European elections – tried to make ‘of all the grass a Beam’. Launching rants against ‘hemp shops’ that are certain to distract voters from the political issues that matter, economy and jobs firstly. Based on a resounding deception, the false axiom ‘hemp equals drugs’. Where, on the other hand – as the current law shows – the only botanical species of Cannabis Sativa L. of which are those without any narcotic or psychotropic effects whatsoever. The pre-election political deception, moreover, was worth reaping the tributes of Confindustria and the large lobby Of tobacconists. (7) The latter feared competition from the ‘
cannabis light
‘ with monopoly cigarettes.
Supreme Court, caning every other day
The main commercial destinies of interest for Cannabis Sativa L. today are in the food and cosmetic sectors. Beyond the greedy ambitions of pharmaceutical monopoly, where, too, research deserves development. The United Sections of the Supreme Court were called upon to resolve a clash of views, between different Sections of the Court. (8) Which:
– in some cases have condemned the marketing of hemp inflorescences as ‘drug dealing’ (albeit in the absence of ‘drug’, an essential objective element), (9)
– in other cases have acquitted the defendants of the charge of ‘dealing,’ precisely because the flowers of Cannabis Sativa L. from permitted botanical species are free of psychotropic effects. With good memory of what was established in Law 242/16, through which the legislature intended to establish an Italian hemp supply chain also for food use. (10)
In the midst of the diatribe between ‘ermines’ lies a wide array of practitioners. Farmers, processors, distributors. Young, for the most part, and determined to pursue supply chain projects that the legislature promotes, the Po Valley minister accuses and the ermines cane, every other day. A short-circuit of the system-Country that threatens to undermine a profitable and growing agricultural sector animated by serious entrepreneurs, who are accustomed to registering seed authorization certificates and material flows of goods, as well as receiving frequent inspections by law enforcement authorities.
United Sections of Supreme Court, narcotic extract
The United Criminal Sections of the Supreme Court – called upon to decide whether to stop the every other day thrashing of entrepreneurs who operate within the law of the state – entrust a laconic ‘provisional information’ with the stunning excerpt of their cogito. Following is the text.
‘
Controversial issue
:
Whether conduct other than the cultivation of hemp of the varieties listed in the catalog specified by Art. 1, paragraph 2, of Law Dec. 2, 2016, no. 242, and, in particular, the marketing of cannabis sativa l., do or do not, and if so, to what limits, if any, fall within the scope of applicability of the aforementioned law and are, therefore, criminally irrelevant under that legislation.
Solution adopted:
the marketing of cannabis sativa l. and, in particular, of leaves, inflorescences, oil, resin, obtained from the cultivation of the aforementioned hemp variety, does not fall within the scope of Law No. 242 of 2016, which qualifies as lawful only the activity of hemp cultivation of the varieties listed in the Common Catalogue of Agricultural Plant Species, pursuant to Art. 17 of Council Directive 2002/53/EC of June 13, 2002, and which exhaustively lists the derivatives of the aforementioned cultivation that can be marketed; therefore, they constitute the offense under Art. 73, paragraphs 1 and 4, Presidential Decree no. 309/1990, the conduct of transferring, selling and, in general, marketing to the public, for any reason whatsoever, the products derived from the cultivation of cannabis sativa l., unless such products are concretely devoid of drugging efficacy.‘
United Sections, whistles for whistles
The ‘solution adopted’ doesn’t ‘solve’ a damn thing, except to offer a platform for equally useless comments from obtuse politicians who persist in confusing:
– industrial hemp, a crop that dates back to the Middle Ages and currently occupies 4,000 hectares of land in Italy, until the middle of the last century the world’s second largest producer (with more than 130,000 hectares under cultivation) after the Soviet Union,
– ‘recreational’ hemp, with a narcotic effect, completely outside the scope of the present discussion as well as the scope of the judgment under consideration.
The ermines’ claim that Law 242/16 ‘qualifies as lawful only the activity of hemp cultivation‘ is manifestly false. Instead, Article 2 of the law explicitly authorizes the production of a wide range of products, in a list that does not seem at all exhaustive in light of the ratio legis. Indeed, the legislature’s goal is to promote the industrial hemp supply chain as a whole, after clarifying that botanical species included in the Single European Catalogue are excluded from the scope of the Consolidated Narcotics Act.
Hemp oils
to which the ‘
provisional information no. 15‘ of the Palazzaccio recalls are even provided for in the register of so-called botanicals adopted by the health ministries of France, Belgium and Italy (so-called BelFrIt list). What ingredients are allowed in dietary supplements, which in turn qualify as ‘
Food products intended to supplement the normal diet and which constitute a concentrated source of nutrients or other substances having a nutritional or physiological effect
‘.
Among other things, this contra legem jurisprudential obbrobrio seems to ignore the existence of a Common Agricultural Policy, in the context of which the supply chain under consideration is also located. As well as a Single Market, within which goods legitimately produced in compliance with EU law must be allowed to move freely, under penalty of infringement by the member state. Thus the ermines contradict themselves, a blow to the circle and a blow to the barrel. And after theorizing the applicability of the Consolidated Narcotics Act (TUS) to the sale of hemp derivatives, which are excluded by law from its scope, they reiterate that the TUS does not apply when the substances are concretely devoid of drugging effect. That is, always, where the requirements of Law Dec. 2, 2016 no. 242 be respected. Logical short-circuit.
On planet Earth, in Italy as well as in Europe, cultivate transform and commercialize permitted botanical species of Cannabis Sativa L. and their derivatives remains lawful, subject to THC limits to be harmonized by the European Commission as soon as possible on the basis of a scientific food safety risk assessment to be entrusted to theEuropean Food Safety Authority (EFSA). Applying, meanwhile in Italy, the thresholds defined in the Ministry of Health regulation. It is only a pity that the grave misconduct of the supreme lawmakers will go unpunished and that other honest entrepreneurs in the agribusiness supply chain will face legal fees and frustrations to reassert their rightful business. Without needing to bother, hopefully, the European Court of Human Rights or the Court of Justice.
Dario Dongo
Notes
(1) Law 242/2016, Article 1 (
Purpose
), para. 1. In OJ General Series no. 304 of 12/30/16, at https://www.gazzettaufficiale.it/eli/id/2016/12/30/16G00258/sg
(2) Idem c.s., article 1, paragraph 2. For the Single European Catalogue of permitted botanical species, see https://ec.europa.eu/food/plant/plant_propagation_material/plant_variety_catalogues_databases_en
(3) Idem c.s., art. 1, para. 3
(4) Law 242/16, Article 2(Lawfulness of cultivation), Paragraph 1.
(5) Idem c.s., art. 2, para. 2. The use of hemp as biomass for energy purposes for farm energy self-production is also allowed
(6) See Court of Justice EU, Third Chamber, Case C-113/15, judgment 22.9.16,
http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130d63059ab0ab8bd4fcbab29f78d347e6876.e34KaxiLc3eQc40LaxqMbN4Pah4Qe0?text=&docid=183706&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=271033
(7) The chemical and pharmaceutical industry-despite modest turnover compared to the food industry-has far greater political clout, including in Confindustria and Assolombarda. As the recent presidencies of Giorgio Squinzi and Diana Bracco, respectively, demonstrate
(8) See Cass. pen. section IV, no. 8654/2019
(9) See Criminal Cassation, Section VI, judgment no. 52003/2018
(10) Cf. Cass. Pen. sect. VI, judgment no. 4920/2019
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.