MMJ Daily write.
Italy’s Council of State has referred the classification of oral CBD to the Court of Justice of the European Union without ruling on it, and the decree that would restrict oral CBD products to pharmacies stays suspended while Luxembourg considers the questions.
“The decree remains suspended because it had already been suspended by the Council of State,” says Giacomo Bulleri, the lawyer who argued the appeal for the sector. The December suspension therefore carries through the referral, which leaves operators in the same legal position they were in before 3 August rather than a new one.
“The suspension stays, and after the Court’s decision comes the question of whether to annul the decree or not,” Giacomo says. “If the Court of Justice confirms that this is a quantitative restriction, the Council of State will annul the decree. If not, the decree regains effect.” The Italian proceeding is paused rather than closed, and the outcome in Luxembourg determines which way it resumes.
“There is a passage where the Council of State states that in any case there is no evidence in the record that CBD is a narcotic,” Giacomo says. “The Italian court concludes this in continuity with Kanavape, which had already excluded CBD as a narcotic.” The referral therefore does not come from doubt about intoxication, and the court accepted that part of the case before sending it on.
“What convinced the Council of State to refer to the EU court was to understand the more scientific part of the interactions at European level,” Giacomo says. “To clarify this difference between natural and synthetic CBD. Is it a problem of residues, or of safety?”
“The Kanavape ruling was centered on free movement. If a product is lawfully produced in a member state, there cannot be limits,” Giacomo says. “But it was not discussing the lawfulness of CBD or which category it falls into. Here we are talking about a member state where it is prohibited.” The 2020 judgment in case C-663/18 settled what one member state must accept from another, and left open what a member state may do to a product inside its own borders.
“A generalized ban cannot exist. It is established that it is not a narcotic, and there is no evidence,” Giacomo says. “If there are doubts about public health, sector safeguards already exist. There are limits in food, and at the medical level there is a monograph.” Those are the arguments the appeal ran on, and the court has now put versions of them to Luxembourg rather than deciding them in Rome.
A second referral is already in the system. “Another ordinance from the Paris court referred a question on the French CBD law, more on the food side, while our decree is centered on medical CBD,” Giacomo says. “Given that it will be a year and a half to two years before the decision, within the next two years we will have a decision binding on all member states, through the French referral and the Italian one.” The two cases arrive from different directions, which is why Giacomo expects the answer to reach further than either national dispute. “After the decision, it obliges the state to comply, and it must repeal the rule,” says Francesco Mirizzi, Managing Director of the European Industrial Hemp Association. “There is an infringement procedure in this regard, there is a need for corrective action by the state. You can have financial penalties.”
Enough stigma, time for regulation
The decree behind the Italian case dates to 2020, when health minister Roberto Speranza classified oral CBD products as medicines containing narcotics. It was suspended within weeks. Minister Orazio Schillaci reactivated it on 27 June 2024, and the Meloni government’s security decree of April 2025 added further restrictions. The TAR suspended it in September 2024, upheld it in April 2025, and the Council of State suspended it again in December. The Third Section heard the case on 7 May and issued ordinance 6202/2026 on 3 August.
“Once the stigma is overcome, it becomes a regulatory question,” Giacomo says. “Then we discuss end uses and interactions, but we cannot and must not discuss narcotics.” Not being a narcotic opens categories that were previously closed off, from cosmetics to officinal preparations, and Giacomo expects the classification fights to move there. Where CBD lands in food carries its own conditions, he says, because products that could reach children have to be framed accordingly.
“When there is this kind of uncertainty, the best advice is to do nothing, and not to take reckless initiatives or anything different from what has been done until now,” Giacomo says. “This is not the moment for escalation. Whoever has stayed open, stays open.” Making investments or forecasts under a sword of Damocles is inadvisable, he says, and operators who have survived ten years of this have already found their positions.
