To what extent does the cannabis law open up to marketing?

The law of December 2nd 242/2016 - provisions for the promotion of cultivation and the agro-industrial chain of hemp - has relaunched, after 60 years, the industrial hemp chain in Italy, a country that up until the Second World War, with 90 thousand hectares grown on the national territory, produced more hemp than today is produced worldwide.

The legal rehabilitation of industrial hemp moves from the accomplished, albeit late, legislative transposition of the enormous potential which, if promoted and supported, is able to contribute to the ‘reduction of the environmental impact in agriculture, to the reduction of land consumption and of desertification and the loss of biodiversity’ (Article 1, paragraph I).

The legislative novelty has recognized broader forms of protection towards farmers in a form of liability exemption when, as the result of a sample inspection conducted by the State Forestry Department, the total THC content of cultivation is higher than the 0.2% and within 0.6% (Article 4, paragraph V).

The same exclusionary effect is also achieved if the threshold of 0.6% is exceeded, with the difference that in the indicated eventuality the judicial authority will be entitled to order the seizure or destruction of cultivations (Article 4, paragraph VII).

The prediction of a "range" of oscillation serves as a "buffer" for the responsibility of the farmer due to the variety of morpho-physiological characteristics of hemp plants that can be found even within the same field (border plants, for example, for reasons mainly related to increased solar exposure, have a higher level of THC than those grown in the centre of the field).

Reintroducing cannabis into the cultivation systems and the Italian agro-industrial supply chains, the aforementioned Law 242/2016, has generally been welcomed with extreme favour, although not entirely without criticism.

In particular, the real ‘Gordian knot’ of the Law 242/2016 is represented by the legislative silence regarding the lawfulness of the use of hemp inflorescences, i.e. the flower, the greater value of the biomass in which are concentrated hundreds of active ingredients - flavonoids, terpenoids, cannabidiol (CBD) - of considerable interest for nutritional, cosmetic, health and therapeutic use of cannabis.

Indeed, in the original draft of the law, the list indicating what can be obtained from the cultivation of hemp referred to in Article 2, paragraph II - entitled ''lawfulness of cultivation'' -, provided explicit reference, but was changed in the final version, to the ''production of fresh and dried inflorescences for floral or herbal purposes''.

Today's formulation of the law, specifying nothing about the lawfulness of the industrial use of inflorescences, generated a ''regulatory vulnus'', which a small number of entrepreneurial companies have irresponsibly used to face the market of hemp inflorescences with a legal content of THC - below 0.6%, - and high - around 4% - of cannabidiol (CBD) which are not associated with the classic psychoactive effects, but with muscle relaxants, antipsychotics, tranquilizers, antiepileptic’s, antioxidants and anti-inflammatory-.

There is a growing number of businesses that have rapidly adopted the new business model - apparently unstoppable, albeit within the limits of legality - which, in the silence of the law, witnessed the proliferation of a wild self-regulation, to the detriment of the quality, traceability and labelling of the product as well as consumer protection.

However, it is by a way of self-regulation, that the aforementioned companies have gotten the hang of the use of hemp inflorescences of the generic and unspecified formula ''technical, non-medicinal, food or combustion'' with the purpose of subtracting the product to the controls required for goods destined for "human use" - such as, for example, those concerning the origin of the product, the characteristics of the soil, the presence of pesticides, heavy metals, parasites and moulds, packaging, storage, expiry -.

If, on the one hand, the hemp inflorescences with the legal content of THC can not be sold for smoking purposes - because they are ''non-combustion products'', even though this is the main use of it -, on the other hand, the absence of specific rules on product safety has pushed the consumer to exclusively rely on the professionalism and good faith of the producer.

In the absence of a normative framework designed to support the above described entrepreneurial initiative, some of the first commentators of the law, in an attempt to provide it with a less evanescent legal coverage, have - more or less reasonably - observed that:

  • the legal assumption that "anything that is not regulated or prohibited is implicitly authorized" is reasonably applicable;
  • the rule pursuant to art. 4, paragraph V - which provides the exemption from liability for the farmer if, as the result of a random sample control, the total content of THC of cultivation is higher than 0.2% and within 0.6% - although originally designed for the farmer, must encompass a broader spectrum, such as to extend the exclusionary effect to the subsequent marketing of the products, when in accordance with the principles set out above;
  • the prohibition of industrial use of hemp inflorescences would have the effect, in contrast with the spirit of the law, of depleting the molecular heritage of the resource;
  • the aforementioned prohibition would result in a competitive disadvantage for Italian cultivators compared to the colleagues in other EU countries.

The market of products deriving from the inflorescences, although with a rarely aware approach to the described problems, has reached such a level of expansion that it requires a proper regulation.

Therefore, the wish addressed to the lawmakers is that of a quick clarifying intervention that, in addition to ensuring the objectivity and certainty of the Law 242/2016, would provide quality guarantees for consumers and security for investments - which, if regulated, could lead, according to authoritative estimates, to a turnover of 44 million euros a year, 1,000 permanent jobs and 6 million euros per year of tax revenues-.