Business of Cannabis explains
On July 31, 2024, the joint Constitutional Affairs and Justice committees of the Chamber voted to add an amendment to the Security Bill that would make flowering cannabis of all types, regardless of THC content, illegal and considered a narcotic.
This amendment, known as Article 18, equates industrial hemp with high-THC cannabis rendering the trading, processing, and exporting of leaves, ‘flower’, resins and all products containing substances derived from hemp illegal.
Italy’s Security Bill, which covers a raft of other controversial measures alongside the ban on industrial hemp, had been stuck in regulatory limbo for some months and had received pushback even from inside Georgia Meloni’s ruling coalition, his support for the petition and cause points to increasing splits within the government over the issue.
However, late last week the government moved to expedite the bill and present it as a ‘decree law’. The Italian Constitution allows the government to issue decree-laws (decreti-legge) in cases of necessity and urgency.
In effect, this ‘emergency’ measure bypasses the normal process of legislative debate in parliament, meaning the Security Bill did not return for a third reading, and lawmakers were unable to reject it or make final amendments before it is enforced.
As such, the bill is set to be enforced immediately, but this is currently only temporary. The Italian Parliament has 60 days to formally covert the decree into law before it expires.
According to legal experts, the final decision now rests with President of the Republic, Sergio Mattarella, who will now decide whether to intervene or sign the decree into law.
Reaction and pushback
The Italian hemp industry has, unsurprisingly, issued a vocal and unified dismissal of the government’s latest move.
Legal challenges, a push for international interjection, and even public demonstrations are all already planned in response.
Lawyers Giacomo Bulleri and Carlo Alberto Zaina, who represent Federcanapa, analysed the legality of the government’s bill, concluding that: “Article 18 of Draft Law 1236 was designed with the explicit and sole purpose of blocking the production and commercialisation of hemp inflorescences (and derivatives), regardless of the actual THC content.”
They explain that it is likely illegal both in the eyes of Italian constitutional and international law. The pair argue that the law is too vague (indeterminate) about what exactly is illegal, which undermines the constitutional principle of legal certainty under Article 25(2) of the Italian Constitution.
Furthermore, ignoring THC levels and the presence of non-psychoactive cannabinoids like CBD, CBG and CBN, which are legally tradable across the EU, represents a ‘structural flaw in the decree’, breaching numerous principles of international law.
As such, they believe legal challenges are inevitable, both in Italian and European courts.
“This decree instantly criminalises an entire agro-industrial sector with no logic, no science, and no transitional period… This can only constitute a further violation of constitutional principles and the European Convention on Human Rights, cases for which Italy has already been sanctioned in the past.”
In a statement issued over the weekend, the Imprenditori Canapa Italia (ICI) another Italian industrial hemp trade association, said: “We are faced with an act of unprecedented gravity, which marks a black page for the rule of law, freedom of enterprise and constitutional guarantees.
“With a stroke of the pen, the government has decided to transform thousands of honest entrepreneurs into criminals, guilty only of having exercised a legal profession, paid taxes regularly and created jobs.
“This rule has nothing to do with national security. It is an ideological, punitive and irresponsible choice, which exposes Italy to ridicule on the international level, undermines the principle of fair competition, violates European law and paves the way for million-dollar lawsuits and a probable infringement procedure.”
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Our lawyer, Giacomo Bulleri, together with the lawyer Carlo Alberto Zaina analyzed the text, and declared:
Article. 18 of Legislative Decree 1236 was conceived by the government with the clear and unique intention of blocking the production and marketing of hemp inflorescences (and derivatives of the same) regardless of the actual THC level contained.
The incipit of this standard rests in “ … in order to prevent the intake of products consisting of hemp inflorescences or containing such inflorescences from favoring, through alterations in the psychophysical state of the hiring subject, behaviors that expose safety at risk or public safety, or road safety … ”.
The reasons for the intervention raise strong doubts of constitutionality, as well as compatibility with Euro-EU legislation.
It seems, in fact, to be able to say that the premise of the regulatory intervention may be suspected of violating the principle of determination of the case of crime, which although not expressly mentioned in the Constitution, seems to be – according to the best doctrine – a corollary , a logical completion and therefore a «fundamental aspect » of the principle of the legal reserve set by art. 25, paragraph Cost even if some commentators have also made a correlation with art. 1 cod. pen. interpreted as a constitutional rule in a material sense –.
First of all, the identification tout court of the inflorescences appears generic and unreasonable, for the same same reasons given in relation to the doubts of constitutionality raised for art. 187 CdS.
The possible illegality of the inflorescences, intended as substances suitable for containing doping active ingredients, depends on the actual level of presence of the only psychoactive active ingredient – THC tetrahydrocannabinol -.
The scientific literature has set (and the jurisprudence has accepted this indication) to the extent of 0.5% the threshold below which no amazing suitability of inflorescences, resins, leaves and oils is certainly recognizable.
The residual limits – enshrined in art. 4 L. 242/2016 – not only concern the cultivation activity, but, above all, govern other and distinct parameters (which, moreover, can be harmonized with that indicated).
Limit any assessment of potential illegality of the inflorescences to ideological and abstract statements, which do not take into account the actual offensive and harmfulness of the product and, at the same time, the presence of cannabinoids, such as CBD, CBG, CBN, which, without psychoactivity, can freely circulate in European countries pursuant to art. 34 and 36 TFEU (V. Sent. 19.11.2020 European Court of Justice), therefore, constitutes a further structural defect in the regulatory system.
If, therefore, there is a potential genetic defect of the measure that affects the assumptions of the same, it also extends to specific interventions.
Without indulging in long insights, the character of superficiality and mere formalism that many corrections present is underlined.
The addition to co. 1 of art. 1 of the word “industrial ” is simply superfluous.
The replacement of the previous phrase (” .. the culture of hemp finalized … ”), in co. 3, with the phrase “ … exclusively the cultivation of hemp provenly finalized .. ”, it seems only an intervention of mere suggestion with the use of purely reinforcing adverbs, but which in substance do not express much.
Instead, the two co deserve greater attention. 3 bis, added to both art. 1, that in art. 2.
The first excludes the application of Law 242/2016 “ … to the import, processing, possession, sale, distribution, trade, transport, sending, shipping, delivery, sale to the public and to the consumption of products consisting of hemp inflorescences, also in semi-finished, dried or shredded form, or containing such extracts, including
The prohibition – which would automatically lead to the applicability of Dpr 309/90 – to these conduct replicates the concerns already expressed, as – pending the nature of the inflorescences and derivatives from them, as well as the toxicological profiles highlighted in relation to the principle of offensiveness – it lacks indeterminacy, because it does not identify the specific profiles
In the same way, it can be pronounced in relation to co. 3 bis of art. 2 “ … The import, transfer, processing, distribution, trade, transport, sending, shipment and delivery of the inflorescences of hemp grown pursuant to paragraph 1 of this article are prohibited, also in semi-finished, dried or shredded form, as well as products containing or consisting of such inflorescences, including extracts, resins and oils derived from them. The sanctioning provisions provided for in Title VIII of the consolidated text pursuant to the decree of the President of the Republic 9 October 1990, n. 309. Only the processing of the inflorescences for the agricultural production of the seeds referred to in letter g-bis) of paragraph 2 is allowed … ”.
It is ’, therefore, evident that the matter must be transferred to the attention of the Consulta, once the DDL 1236 has full application, after publication in G.U. and, above all, after the possible conversion into law.
In the meantime, those who intend to proceed will certainly do so at their own risk, in order to provoke the intervention of the judiciary, in order to verify the constitutionality of the standard.
From a different point of view, the rule runs counter to the Euro-EU legislation as it violates the principles of proportionality of the measure adopted which seems suitable for configuring an undue quantitative restriction on the organization of the common market for hemp and flax in violation of Articles 34 and 36 TFEU.
The sativa L. hemp plant from certified seeds, in fact, without distinctions between the parts of it, is expressly qualified as an agricultural product by Annex I of the TFEU and has its own organization of the common market so as to be the recipient of the PAC prize to pursuant to Reg. (CE) nn. 1307/13 and 1308 / 13-.
The Court of Justice of the European Union has already ruled on the relationship between national regulations and Community law with the judgments given in the Hammerstein case (2003) and in the Kanavape case (2020) in which the principle according to which national legislation aimed at prohibit the cultivation or possession of sativa hemp (Hammerstein case) or to limit the circulation of products to CBD base obtained from flowers and hemp leaves (Kanavape case) constitute violation of articles 34 and 36 TFEU where they are not based on proven scientific evidence.
This principle has already been transposed by both the French Council of State and the Lazio TAR with sentences no. 2313 and 2316 of 14.02.2023 with which he had disapplied the Interministerial Decree in the part in which he excluded hemp flowers and leaves from the list of medicinal plants.
Under these principles, however consistent with the international discipline of the Single Convention on Narcotic Drugs of 1961 and subsequent amendments, they can only be deposed for a substantial contrast between art. 18 of the Decree in comment and the Euro-EU legislation as it is not based on any scientific need but for mere (and not proven) precautionary needs related to public order in clear violation of the principle of proportionality of the measure, which, in this case, is extremely aggravated from the immediate entry into force of the Decree and from the failure to notify the European Authorities pursuant to the so-called TRIS procedure.
The use of the competent courts appears to be necessary to remedy a rule that – overnight – makes an entire agro-industrial production sector illegal without any logical, scientific and legal basis.
All aggravated by an all-Italian modus legislandi aimed at changing the rules in the running with dramatic impacts in the production sectors, without the provision of a deadline to adapt to the net regulatory change.
This can only complement a further violation of constitutional principles and the European Convention on Human Rights, cases for which Italy has already been sanctioned in the past.
Now the last word belongs to the President of the Republic, Sergio Mattarella. It will be up to him to decide whether to sign this decree or intervene to protect a strategic sector for agriculture and the Italian economy.
Il Governo persevera in questo attacco insensato alla canapa salvando solo il seme.
