Comprehensive Hemp Regulation in Spain: Challenges and Opportunities

The regulation of hemp has gained special relevance in Spain in recent days due to the comments of the president of the Community of Madrid, Isabel Díaz Ayuso, against the sale of CBD. In this context, yesterday, May 27, 2024, the second edition of the Cannabis Breakfast on the regulation of industrial hemp in Spain was held in Madrid. It was a session organized by the CannabisHub and the 21st Century Drug Chair, with the aim of promoting education, responsible regulation and innovation around the cannabis sector for the development of an ethical and sustainable industry.

This article provides a detailed, technical and informed perspective on the current situation of the hemp and CBD sector in Spain, with reference experts at both national and European level.

Regulatory context of hemp and CBD in Spain

The regulation of hemp and its derivatives such as cannabidiol (CBD) is a reality in Europe that has not yet materialized in Spain, with the consequent loss of opportunities and competitiveness of Spanish companies, which are at a clear disadvantage with respect to other member countries. The lack of regulation and the prohibitionist vision of certain administrations in Spain have created legal uncertainty for operators in the Spanish sector and users.

Araceli Manjón-Cabeza Olmeda, former Director of the Cabinet of the Spanish National Plan on Drugs, Professor of Criminal Law and Director of the 21st Century Drug Chair at UCM, states that there is a complete lack of regulatory framework that generates legal uncertainty in the sector. In the absence of specific regulation, Spain applies a regulation that is contemplated for narcotic drugs to a substance that is not a narcotic drug, such as non-psychoactive cannabis flowers or CBD.

This also produces an absolutely implausible situation, in which Spain allows the importation of hemp and CBD products from member countries of the Union and their commercialization within the country, but at the same time, prevents national production. A paradoxical situation, in which hemp flower and CBD can be bought and sold within Spanish territory, but cultivation is not allowed in the country, harming the interests of Spanish farmers and entrepreneurs.

Prohibitionist approach and interpretation of the Single Convention

In 2016, the United Nations (UN) positioned itself in favor of promoting flexible interpretations of the Convention and admitting national solutions, advocating to reverse the prohibitionist inertia of the last half century. This is what allows some countries or territories to regulate psychoactive cannabis for adult use. Furthermore, in 2021,7 the WHO pronounced on CBD, stating that it is not addictive or dangerous, is well tolerated AND with a good safety profile, and does not produce psychoactive effects. It also recommended that CBD, including hemp flower, should not be controlled substances under the Convention, given its low risk of abuse and dependence and its potential applications.

Analysis of the Single Convention and the Spanish Narcotics Law

The situation in Spain is based on the erroneous consideration that hemp and CBD are narcotics. Analyzing the 1961 Single Convention, we see that it is not so restrictive. This consideration that Cannabis is everything that belongs to the genus cannabis, must first of all be contextualized. Second, it has exclusions, and third, it has an exception.

Araceli Manjón-Cabeza Olmeda, Professor of Criminal Law, explains her reasoning why non-psychoactive hemp flower and CBD cannot be considered narcotic drugs:

More information: Legal analysis of the Single Convention and the Spanish Narcotics Law

Contextualization

The Single Convention defines “any plant of the genus Cannabis” as falling under control. However, this definition is preceded by an introductory paragraph stating. “unless the context requires a different interpretation.” . The authors of the Convention were unaware of the CBD, and according to the expert, the context calls for another interpretation. Araceli Manjón-Cabeza comments that this same line is the one underlined by the CJEU in 2020 (Kanavape case), which indicated that a literal and incomplete reading of the Convention should not be made. She proposes a complete, literal, systematic and teleological reading. In summary, although hemp and CBD come from the cannabis plant, the contextualization indicates that they are not narcotic substances.

Exclusions

The Convention speaks of exclusions, which are: (1) cases in which the resin, seeds and leaves of hemp have already been extracted, and (2) hemp, in Article 28.2. Article 28 can be interpreted as describing some of the purposes that evade control, and indicates: “hemp (fiber and seeds) and horticultural uses“. “The interpretation can be made that these purposes are exemplary, and that other industrial purposes are not being excluded.” .

At this point, Araceli Manjón-Cabeza makes a parenthesis to comment on the Spanish Narcotics Law (1967). This regulation is outdated because it refers to the consumer as a drug addict, i.e., it does not admit non-problematic drug use. In addition, she says that drug addicts are treated as mentally ill. “Today we know that 95% of drug users are not problematic, and the other 5% are not necessarily mentally ill.”

When transposing Article 28 of the Single Convention, this law has two things that distinguish it. First, it eliminates horticultural purposes. That is where many cling to say that hemp cultivation is not allowed in Spain. However, when the law speaks of industrial purposes, it does not put “fiber and seeds” in parentheses [como en la Convención Única]. In other words, the narcotics law is not excluding purposes other than fiber and seeds. Therefore, it is admitting other industrial purposes, because otherwise, it would have restricted it.

Exception

Finally, the exception in the Convention is Article 29. The criminal law expert does not use it as a rationale for saying that CBD and hemp are not narcotics, but uses it as a major to minor argument. The reason is that this article assumes that we are dealing with a narcotic drug, which can be denatured or, by other means, prevent harmful purposes. However, although hemp and CBD are not narcotic drugs, it is worth saying that if it is contemplated and permitted to denature a narcotic drug, a product or a plant that is denatured at source, from the seed, must also be permitted.

The ’71 Convention leads us to the same conclusion. Only THC (Delta-9-THC and its isomers or chemical variants) is controlled. CBD is not controlled.

Analysis of the European Regulatory Framework

The framework decision 2004/EU regulating the minimum requirements for the crime of drug trafficking originally defined drugs as substances listed by the United Nations. However, at a certain point in time, with the rise of synthetic or designer drugs, it became too little, and the European Union amended the framework decision to introduce two additional entries to the schedules: new psychoactive substances and mixtures of new psychoactive substances. These two lists have already been expanded 5 times, and are full of so-called synthetic cannabinoids. In no modification has CBD been included in this classification. Therefore, within the European Union, CBD is not controlled either.

The hemp plant is regulated in European policy, and is even eligible for subsidies under certain conditions. It is debatable whether the regulation is satisfactory or not, but it is clear that at the European Union level there is no control. The judgment of the CJEU 2020 says it clearly: natural whole plant CBD is not psychotropic, not narcotic and not psychoactive, it is part of the Union’s trade, and any prohibition or equivalent effect is contrary to the treaty of operation.

On this point, Araceli Manjón-Cabeza points out that that the preliminary ruling is the interpretation of Union law. This interpretation of the provisions governing EU goods duties is binding on all member states..

Finally, the expert explains that in Spain there is a very precise regulation to declare a narcotic substance, even if it is not declared in the EU or in the UN, which has already been used to declare certain substances as narcotic. And not even CBD appears on these lists.

In summary, Araceli Manjón-Cabeza Olmeda explains that neither the non-psychoactive flower nor CBD are narcotics. They are not supervised, neither at the international level, nor at the European level, nor in Spain. The Single Convention is not exhaustive, and must be contextualized, excluding non-psychoactive cannabis flowers and CBD from control because they are not narcotic drugs. In the EU, CBD is not taxed, and the CJEU 2020 ruling, which is binding on all member states, ratifies the non-psychoactivity of CBD. In Spain, CBD is also not included in the narcotics regulations, which underlines the need for a specific regulation to support the development of the hemp sector. “We are not dealing with controlled products, therefore they cannot be the material object of the crime of drug trafficking. That is to say, their handling cannot generate this type of crime. What is necessary is to regulate the market”.

Spanish Ministry of Agriculture’s perspective on hemp cultivation

Fernando Mosquera, Head of Industrial Crops, Deputy Director General of Arable Crops and Director General of Productions and Markets of the Spanish Ministry of Agriculture, Fisheries and Food, explained the interpretation of hemp cultivation from the Spanish Ministry of Agriculture.

The Ministry is aware that the growing interest in this crop is due to non-traditional uses, such as CBD and its derivatives. Spanish legislation considers industrial hemp as a permitted agricultural crop, as long as it is below the narcotic content of less than 0.3% THC and comes from certified seeds from varieties included in the common catalog of plant varieties of the European Union.

The problem arises because hemp flower is not contemplated within the uses of industrial hemp. It states that they are aware that not including the flower fraction within industrial hemp is a stumbling block for the sector, both for the uncertainty generated around cultivation and legal uncertainty, as well as for the brake on the development of other products and purposes of industrial hemp, such as all CBD derivatives. At the same time, it is encouraged to disseminate information on the differences between cannabis and industrial hemp, because misinformation is a problem associated with cultivation.

Without wishing to enter into the regulatory debate, he mentions that cannabis flower is controlled, and therefore falls under the Spanish Narcotics Law. He also points out that hemp cultivation is decreasing in Spain, a point that will later be contextualized in the intervention of the lawyer Fernando Soriano.

However, the Spanish Ministry also admits that the interpretation of the uses of the whole plant varies among EU member states, which generates even more uncertainty in the sector and means a loss of competitiveness for Spanish companies.

European context of hemp and CBD regulation

Hemp Regulation in the European Union: Key Rulings

Giacomo Bulleri, an expert lawyer in the regulation of the hemp industry in Italy (EIHA), of Studio Legale Bulleri, states that the current trend is the regulation towards legality of the entire hemp plant in the European Union. This path is in line with the European rulings of the Hammerstein case (2003), in favor of industrial hemp farmers in Sweden, and the famous Kanavape case (2020), which determined that CBD should not be considered a narcotic and can be freely marketed in the EU if legally obtained in another Member State. Administrative courts in France and Italy have annulled national decrees limiting the use of hemp to certain parts of the plant (essentially seeds and fibers, excluding flowers and leaves), and countries such as the Czech Republic, Croatia, Poland, France and Germany have already adopted regulations to this effect.

In his opinion, the lack of regulation is based on a misinterpretation of the Convention, as well as national drug regulations. It explains that “the cultivation, use and marketing of certain parts of the industrial hemp plant cannot be restricted, because it is contrary to what is stipulated by European regulations” with regulations 1307 and 1308 of 2003. Bulleri adds that it is important to work on this regulation, because legal uncertainty does not help businesses, and that we have a lot to learn from the recent regulation of cannabis in Germany.

Perspective from EIHA

Lorenza Romanese, from her position as Director of the European Hemp Association (EIHA), offers a broad perspective on the regulation of hemp in the different European countries. At the beginning of his intervention, she asserts: “Compared to all European countries, I don’t think there is a worse country than Spain in the regulation of industrial hemp.”.

The Director of the European Hemp Association goes on to explain that. “the EIHA has members from all over Europe, and the ones that are suffering the most, where more companies are dying, is in Spain. Spanish companies do not have the possibility to do business with hemp, unlike all other European countries.”. She cites other examples such as Germany, the Czech Republic, Croatia and Greece, and encourages Spain to look to its neighboring countries.

Lorenza Romanese explains that “the hemp plant can supply very many markets with products, but it is only possible if the cultivation of the whole plant is legalized”. . The objective of the regulation is none other than to allow the development of a competitive Spanish hemp market, which already exists at the European level, and to allow the cultivation of a plant that is beneficial for the environment, which will help develop an industry and a sector, with the positive impact that it can represent at an economic and social level for the country.

Another point made in Lorenza Romanese’s presentation was that the EIHA is working on the regulation of CBD as a novel food in Europe, with the financing and elaboration of toxicological studies to define the safety and toxicity of CBD. The goal is to soon make cannabidiol legal for food use, as a food supplement, in all member countries. In short, a business opportunity that Spanish companies will not be able to take advantage of if the government does not regulate the CBD and hemp market.

Florian Pichlmaier, member of the Board of Directors of the European Industrial Hemp Association (EIHA) and expert on cannabis regulation in Germany, explains the recent legalization of cannabis in the German-speaking country. Pichlmaier highlights how the possibility of using all parts of the cannabis plant and the removal of hemp from the list of narcotics have provided security for German farmers, encouraged investment in the country and boosted a booming economic market. From his business perspective, he observes firsthand how Spanish companies are forced to import hemp from other member countries due to the lack of state regulation, which means a lack of competitiveness of Spanish companies in the hemp sector, which are at a clear disadvantage with respect to other member countries.

Current context of Hemp and CBD. Expectations at the Spanish state level

Hemp research and development

Jose Luis Llerena, Director of the Centro Tecnológico Nacional Agroalimentario (CTAEX), PhD in Agricultural Engineering and President of the ClusCann cluster, gave a demonstration of the enormous potential of hemp cultivation and its multiple applications, with numerous national and international projects, covering multiple applications of the plant.

More information: Uses of the hemp plant

Hemp is a versatile plant with countless uses ranging from the production of sustainable materials to food and biofuels. It can be used to manufacture tough textiles, biodegradable plastics, paper, wood substitutes and building materials such as hempcrete.

Its cultivation is sustainable, as it requires less water and pesticides than other crops, and can help decontaminate soils through phytoremediation. These characteristics make hemp a promising resource for a more sustainable and environmentally friendly future. As an example, he cites hemp as an alternative to treat soil depletion caused by extensive crops, as is already being done in tobacco crops in Extremadura. It can also act as a phytoremediator, to combat the use of nematicides such as the controversial 1,3-dichloropropene. Hemp also plays an important role in CO2 reduction. During its growth, the plant captures large amounts of carbon dioxide from the air, helping to mitigate the effects of climate change.

At a nutritional level, it is a rich source of protein and essential fatty acids, which makes it a very nutritious food for both humans and animal fodder . CTAEX conducted research on feeding hemp to improve animal welfare.

He further explains that the cultivation of hemp for fiber and seed is not profitable, and that it is necessary to allow the cultivation of the whole plant for all these developments to be possible. It invites the Government and the Spanish hemp industry to dialogue and regulate this market, given its enormous potential and the imperative market and environmental needs.

Perspective of Spanish CBD Companies: Market Situation

Isidre Carballido, Cannactiva’s industrial hemp entrepreneur in Spain, reflects on the trajectory of the CBD market in the country. He explains that when the boom in CBD products occurred 6 years ago, companies did the best they could to supply the demand, which continues to be a market need. The administration, for its part, has also done its best to safeguard health and public order. From his perspective, he understands that there are no sides, but that management and operators work together, and must coordinate to satisfy the market.

In addition, he outlines the three most critical issues for CBD traders in Spain today:

1. Cannot grow CBD flower in Spain: As the cultivation of hemp to obtain the flower is not allowed -regardless of the THC content-, companies are forced to grow in member countries and import it. This forces us to take our productions out of the country and bring them back thanks to the European Union’s operating treaty.
2. Goods seized during transport: It is common for packages to be seized because dogs smell cannabis, triggering legal proceedings for alleged drug trafficking (cannabinoids have no smell, the smell of cannabis is due to terpenes, which are common to all cannabis strains).
3. Inspections of CBD stores: Physical shopkeepers can also be subject to searches and prosecutions for harm to public health.

These three hotspots are constantly being prosecuted, proceedings that end up in court, where a judge usually determines that it is not drug trafficking. It is an unnecessary public expenditure of resources and energy.

Regarding these legal proceedings, Isidre comments: “that we are accused of being drug traffickers for selling CBD, with prison sentences, when there is a well-established market and thousands of CBD stores open is, on the one hand, humiliating and insulting, and on the other hand, and with apologies for the expression, it fucks with your health.”. Isi understands that there is no one to blame, that we are all doing the best we can, and therefore urges an honest and ethical solution to give meaning and coherence to the Spanish hemp market.

According to Isi, hemp is the best gateway to cannabis regulation. And in the style of Cannactiva, which we like stories and metaphors, he proposes the following simile: “Let’s imagine a teenager named cannabis, who wants to go out to the dance. The mother, concerned about how she will adapt to society, first tells her no. Both negotiate, and finally cannabis is allowed a controlled exit.”. Follow the example: “Mom, the party is in the evening, but let me go out at least until 1 o’clock. The mother finally gives in, lets her out until 1 o’clock, and calms down a bit, because she sees that she is adapting well to society. And so cannabis continues to grow in the market, until no one cares anymore. Well, what we ask is that they let us out until 1“.

Hemp regulatory crisis in Spain

Bernardo Soriano Guzman, a Spanish cannabis lawyer at S&F Abogados, explains that this issue brings together different organizations, each with its own perspective, and reiterates once again the need to work together harmoniously. The reality is that CBD is an accessible product, with hundreds of stores, internet sales, and non-controlled products. But, in addition, he also exposes cases that he experiences in his professional practice.

First, he rebuts Fernando Mosquera of the Spanish Ministry of Agriculture in his mention of the decline of hemp cultivation in the territory: “In Spain, people are starting to be imprisoned for growing hemp,” he says. This is the main reason why cultivation is being stopped in Spain! In addition, Bernardo explains that, as fines are based on the amount seized, there are criminal proceedings in which fines of up to 20 million euros are demanded for growing hemp. He comments that, in many cases, the Spanish Medicines Agency (AEMPS) is the one instigating this persecution, but that, fortunately, most of the sentences are archived or acquitted.

Currently, it is only possible to grow industrial hemp for flower production with a special authorization from the AEMPS. This permit is costly for the Spanish farmer, who eventually goes to neighboring countries such as Portugal, France or other member countries. But in addition, says Bernardo, this permit does not apply to hemp flowers and their derivatives. “The AEMPS is only competent to authorize medical and health purposes. And the CBD products we are talking about are not medicines or pharmaceutical products. So, growing hemp to obtain flowers, as is done for example in France, is not possible in Spain.”. Here it is important to note that when we talk about hemp regulation, we are not referring to the regulation of medical cannabis.

In his view, it is the container versus the content. “Do we inspect a bottle for its shape, regardless of whether it contains water, beer, or wine? Non-alcoholic beer smells like beer, tastes like beer, but has no narcotic effect. Everyone understands that if something is not a narcotic, it cannot be a drug, it cannot harm the protected legal right, public health, and therefore the crime cannot be committed”..

More information: Detail: Psychoactivity index of cannabis

In spite of this, and given the uncertainty in this regard and the multiple interpretations, some magistrates and judges turn to the National Institute of Toxicology, which in the field of criminal proceedings, analyzes the THC content. What is being attempted is to analyze not only the THC content, but also the rest of the cannabinoids that affect the psychoactivity of the product, such as CBD and CBN (cannabinol), in order to calculate the psychoactivity index of cannabis. This index is calculated according to the United Nations ST/NAR/40 protocol, and is used to differentiate drug-type cannabis from fiber-type cannabis. For its calculation, the psychoactive and non-psychoactive cannabinoid content of a sample is taken into account. If it gives a result of less than 1, and the difference is noticeable between THC and CBD, it does not have psychoactivity. Bernardo explains that, with this calculation, even cannabis samples above 0.7 and 0.8% THC are not considered narcotics. In the end, these proceedings are dismissed from criminal proceedings.

In addition, Bernardo comments that “the content of less than 0.3% THC is a limit established nowhere.”. It only serves to make a crop eligible for subsidies, as is the case with certified seeds, but it is not an obligation for hemp cultivation.

What is happening lately in Spain, continues the Spanish cannabis lawyer, is that “these cases are being filed as criminal cases, and some courts refer them to administrative proceedings. “These cases are archived from criminal proceedings, and some courts refer them to administrative proceedings.. But, once the criminal proceedings have been closed for lack of narcotic principle, in the administrative proceedings they have invented a precept which is the “narcotic drug authorized for industrial uses“. Since no authorized industrial use can be demonstrated for this hemp, it is presumed to be a drug. When the court has already closed the criminal case! A nonsense that, Bernardo trusts, will be solved with time.

Finally, the violation of the rights of CBD users, who are also administratively sanctioned by the Law on Citizen Security (known in Spain as the “Gag Law”), is commented on. ” Fines are imposed for carrying CBD, when what these people have in their hands is a product that is not a narcotic.”.

Summary of the Legal and Economic Challenges of Hemp in Spain according to Experts

To complete the presentation, Bernardo Soriano makes a compilation of the topics discussed among the different experts:

• Comparative legal disadvantage with respect to other European Union countries.
• Loss of competitiveness, opportunities and investments in the Spanish market, which go to other member states.
• Confusion to the population regarding theoretical illegality, with tolerance and permissiveness in practice.
• Infringement of the rights of users of these products.
• Non-compliance with rulings of the Court of Justice of the European Union.
• The saturation of administrations and the waste of public resources.

As possible solutions, in the previous legislature there was an important advance, when a Proposition No of Law for the integral regulation of hemp was approved. Bernardo encourages dusting off this proposal to continue working with all sectors and experts and harmonize the issue.

Many thanks to the reader for making it this far. This is a much longer post than usual, because we wanted to clarify all the issues surrounding the Spanish regulation of hemp and CBD. From Cannactiva, we would like to thank all the participants of the CBreakfast for lending themselves to the open dialogue. Thanks also to the organization. We want the Spanish hemp sector to be possible, we believe in the full potential of the hemp plant in our country, and we will continue working in the same direction. Thank you for being there!

Related references

1. The criminal atypicality of the cultivation and/or commercialization of non-psychoactive cannabis. Alberto Daunis Rodríguez. Revista de Derecho Penal y Criminología, 3.ª Época, n.º 30 (July 2023), pp. 57-111.
2. Court of Justice of the European Union (November 19, 2020). Concerning the Kanavape case in France. Press release on the legality of CBD in Europe no. 141/20.
3. EFSA Panel on Nutrition, Novel Foods and Food Allergens (NDA), Turck D, Bohn T, Castenmiller J, De Henauw S, Hirsch-Ernst KI, et al. Statement on safety of cannabidiol as a novel food: data gaps and uncertainties. EFSA Journal. 2022;20(6):e07322.
4. 1961 United Nations Single Convention on Narcotic Drugs (1961 SCC 1961)
5. Annex IV of the United Nations Single Convention on Narcotic Drugs of 1961
6. Organic Law 4/2015, of March 30, on the protection of citizen security. Known as the Gag Law in Spain. Spanish law under which cannabis users can be fined between €601 and €30,000.
7. Spanish National Institute of Toxicology Minimum Psychoactive Dose Table
8. Recommended methods for the identification and analysis of cannabis and cannabis products. UN Protocol ST/NAR/40.
9. The Common Agricultural Policy: 2023-27
10. Regulations (EU) no. 1305/2013 and (EU) no. 1307/2013.