Can you be fined for smoking CBD on the street?

The increasing popularity of buying CBD flowers online has led to numerous questions about its legality and possible penalties related to its use. In today’s post, we tell you in detail whether hemp buds are legal, key aspects about their use, and whether carrying or smoking CBD in public places can lead to fines.

Is it legal to smoke CBD on the street?

The legality of carrying or smoking CBD on the street is more complex than it seems. In principle, they should not be fined for the possession or consumption of a substance that is legal and is not a narcotic. However, in the case of CBD flowers, you will most likely be reported and fined.

The CBD fine can be appealed, but appeals are usually dismissed by the administration. Ultimately it has to be won in court.

If you have been fined for CBD and you appeal it saying that it is hemp or CBD and not marijuana, in administrative proceedings, the allegations are usually dismissed because they are covered by the 1961 United Nations Single Convention on Narcotic Drugs, according to which any type of cannabis, regardless of its THC content, is illegal.

In other words, the problem is not the THC content, but the part of the plant. Cannabis flower and resin is controlled, subject to regulations and controls by governmental or fiscal entities.

You must decide if you prefer to pay the fine with a 50% reduction (normally 300€), or if you want to initiate the appeal process (which will most likely be rejected), present allegations and go to court. Since the Spanish Supreme Court has not clearly ruled on the issue, there is case law both for and against, so right now it is not certain to win the appeal. According to the lawyers with whom we are in contact, it is easier for the user to pay the fine with a 50% reduction than the whole contentious-administrative process involved in appealing the fine. Please note that this recommendation may vary depending on the current legal and political situation, so it is recommended to contact lawyers for professional advice.

The lack of regulation of hemp in Spain and the defenselessness of companies and users with respect to this issue is something that has been extensively debated. We recommend the following article to clarify the legal issue of CBD in Spain:

CBD Regulations

The only regulated forms of to consume CBD are inhalation, through eLiquid type vaporizations with CBD or CBD Vape Pen. In some countries, the food use of pure CBD is allowed, in cannabis gummies and food products. And in other countries such as Switzerland, Austria or Belgium, hemp for smoking is regulated.

In Spain, as well as in other European countries, CBD flowers and their derivatives, such as CBD resin, are not legally intended for consumption (information that is indicated on all CBD bags). Thus, CBD cannabis is completely legal in Europe, as long as it maintains THC levels within the established legal limits and comes from legal hemp crops.

Legal Context of Cannabis Policy

European cannabis policy has been a constant dance of hypocrisy, guided by prejudice, arbitrary criteria and outdated scientific data. One of its pillars is the 1961 United Nations Single Convention on Narcotic Drugs, where cannabis and its resin, hashish, were classified in the same Schedule IV drugs as heroin, a scientifically absurd equation, given that cannabis, at the very least, does not have the mortality risk associated with opiates. But scientific data and logic do not always prevail in politics. Over the years, this antiquated drug policy has permeated public opinion, making people think of cannabis as a dangerous substance and criminalizing its users. And so we have reached a point where rolling a joint in the street may be frowned upon and require police action (although not always: there are those who maintain a certain tolerance).

The mistake was righted not too many years ago, in December 2020 (almost 60 years after that draconian classification), when in evaluating various World Health Organization recommendations related to marijuana and its derivatives, the United Nations Commission on Narcotic Drugs voted to remove cannabis from Schedule IV of the 1961 Single Convention on Narcotic Drugs, retaining it instead in Schedule I of the same 1961 Convention. On the same date, the Commission chose not to follow the WHO recommendation to add a footnote to Schedule I of the 1961 Convention, stating“Preparations containing mainly cannabidiol and not more than 0.2% delta-9-tetrahydrocannabinol (THC) are not subject to international control“. If this note had been added, the current legal situation of CBD flowers would be different.

Can you be fined for smoking CBD in the street?

The 1961 United Nations Single Convention on Narcotic Drugs considers any type of cannabis flowers or resin as a narcotic drug, regardless of its THC content. At the time this document was drafted, THC-free marijuana did not even exist. Therefore, until recently, these international treaties did not include CBD. Given that this document remains the key instrument that the jurisprudence usually handles to give content to the normative element of narcotics, all appeals of CBD fines are systematically dismissed.

What do the police do if they find CBD buds?

In case the police find CBD flowers on you, and depending on the context, it is possible that you will be denounced by the mentioned Gag Law. In these cases, the police report you, issue a seizure report to the person concerned and send the substance in question to the laboratory for analysis. Subsequently, the administration will analyze the sample and, if it is confirmed that they are cannabis flowers, will sanction.

It is important to emphasize that the analysis performed by the administration only serves to confirm that they are cannabis flowers or resin, i.e. they do not analyze the THC content of the sample. If it is confirmed that it is cannabis, regardless of its THC content, a sanctioning procedure (fine) is initiated. Let us recall that, according to the 1961 United Nations Single Convention on Narcotic Drugs cited above, any type of cannabis, regardless of its THC content, is controlled.

In the legal context in Spain, Organic Law 4/2015, of March 30, on the protection of citizen security, popularly known as the “Gag Law”, establishes in its article 36.16 that it is considered a serious offense “the illicit consumption or possession of toxic drugs, narcotics or psychotropic substances, even if they were not intended for trafficking, in places, roads, public establishments or collective transport, as well as the abandonment of the instruments or other effects used for this purpose in the aforementioned places”. Therefore, Spanish law classifies the possession and consumption of narcotics as a serious offense, punishable by fines of between 601 and 30,000 euros, depending on the circumstances.

In addition, it is important to consider that, if possession is presumed to be for the purpose of drug trafficking, this situation could be considered a possible criminal offense.

The main problem is that CBD flowers cannot be differentiated with the naked eye from THC marijuana: a cannabinoid analysis is needed, which can only be performed in specialized laboratories. Therefore, it will not be possible to prove on the spot whether what is being carried or smoked is marijuana or hemp. Obviously, carrying the product with you in its original packaging and showing the receipt as proof of purchase will help the authorities understand the situation, but it is no guarantee that you will not be reported. On the internet you can read that if the flowers are sealed they can be considered a collector’s item and therefore not subject to fines, but we have not been able to verify this information and in all likelihood it is not accurate.

Appealing a Fine for Smoking CBD

Some people have appealed requesting that the percentage of THC be stated. The administration has dismissed the appeal on the grounds that cannabis is considered a narcotic drug, regardless of its THC content. After consultation with lawyers, they tell us that the appeal of the fine is almost always dismissed, and that this type of sanctions can only be won in court, so they usually recommend paying the fine with a reduction, rather than exposing yourself to a long legal process.

When a sanction is unjust or disproportionate, you must file an administrative appeal with the body that imposed the sanction. Each resource will depend on the circumstances, but, broadly speaking, it is a matter of legally differentiating between two types of cannabis: hemp and marijuana, from a legal point of view. We advance you that it is not an easy or fast process, and that you must go to court to win it. You must decide if you prefer to pay the fine with 50% reduction, or start a process that it is not possible to know if it will be successful.

It is relevant to consider the analysis of lawyers specialized in the matter, who argue that hemp buds without THC cannot be classified as a drug, since they do not produce psychoactive effects characteristic of marijuana. In this context, the defense would be based on the fact that the protected legal right is not affected, since they are not narcotics. Cannabis CBD is a variety of marijuana that contains virtually no THC (less than 0.2% content), and therefore is not a narcotic and cannot be considered a drug, but could technically be classified as “hemp fiber”.

CBD is legal in Europe

Under European Union law, CBD is completely legal and is governed by the provisions relating to the free movement of goods. CBD is a fully legal substance in Europe, including Spain. In 2020, the Court of Justice of the European Union (CJEU) ruled on the legality of CBD and its commercialization in different European countries in relation to the Kanavape case, in which France imposed prison sentences on entrepreneurs for selling a CBD cartridge-type product for vaping.

The CJEU declared that CBD is not psychoactive and is not classified as a drug, that it is legal in Europe, and that member countries cannot prohibit its sale, as long as the product has been obtained legally. The CJEU ruled that CBD is not considered a narcotic drug and therefore may be subject to the EU’ s free movement of goods provisions . Therefore, a country’s ban on trade in CBD is contrary to Union law and could only be justified on grounds of general interest, such as the protection of public health.

At this point it should be noted that, within the European Union itself, there are different legal limits of THC allowed. For example, in the Czech Republic the limit is 1% THC, 5 times more than that allowed in Spain. This is something to keep in mind if you decide to travel with CBD to other countries or buy online from other member countries.

Cannactiva products are intended for external use. CBD flowers are sold as collector’s items and are not legally intended for consumption. We recommend a responsible use of our products.