According to the Court of Cassation, is selling Cannabis light illegal? At the end of the sentence: selling is a crime unless there is a drug effect…
Despite Maria Giuseppina Fodaroni, Attorney General of the Court of Cassation, having asked to send the documents to the Constitutional Court in order to take any decision, the joint sections of the High Court have ruled anyway. For the Court of Cassation according to provisional information 15 of sentence, selling Cannabis light is illegal. Maybe… yes, no, let's see…
At the end of the provision issued shortly after 6 pm on 30 May 2019, it is stated that the crime is " the conduct of transfer, sale and, in general, the marketing to the public, in any capacity, of products derived from the cultivation of cannabis sativa L., unless such products are in fact devoid of any narcotic effect".
Now comes the complication-ambiguity highlighted by the provisional information from the Court of Cassation: understanding this drugging effect .
First of all, Cannabis Sativa L. according to the varieties permitted in the Common Catalogue of Agricultural Plant Species (as cited in the same ruling), does not have psychotropic properties.
Moreover, what limit should we consider? And here we go again with the eternal question of the sector. The maximum 0.2 percent of THC? The maximum 0.5 percent of THC, the threshold indicated by the Italian law, beyond which it is a drug?
On this matter, the legality or otherwise of Light and the limits of THC, the Court of Cassation in separate sections has already ruled several times, such as last December 6th , even if it had concluded with an uncertain (always uncertain), " for the existence of the crime under art. 73, paragraph 4, Presidential Decree 309/1990 against the trader, it is necessary to verify the suitability of the percentage of THC to produce a detectable drugging effect".
Can't find the right balance?
In the meantime, panic has spread throughout an entire sector, thousands of shops and hemp growers scattered throughout Italy. It is all a consequence that derives above all from the lack of clarity of Law 242 of 2016 which derogates from previous regulations by identifying Cannabis Sativa L. as a marketable product. But on the inflorescences it leaves a real black hole.
Already at the conference of the Canapa Sativa Italia Association held in Rome on May 29th in the Sala del Refettorio of Palazzo San Macuto – Chamber of Deputies, the lawyer Carlo Alberto Zaina , present today during the session of the Court of Cassation in his capacity as defense lawyer, had already said that the political power was missing an opportunity to legislate better .
In this case, the lawyer stressed, it had already lost it in the definition of Law 242 of 2016 and implicitly delegated to the judiciary the definition of the subjects of the laws, now on Cannabis Sativa. An inappropriate delegation, a compensation that the legislative power must not allow to the judiciary by issuing complete norms and remodulating the existing ones without leaving important aspects undefined.
For a useful summary, in article 2 of Law 242 , on the “Legitimacy of cultivation”, paragraph 2 lists the production destinations of the Hemp Supply Chain:
a) foods and cosmetics produced exclusively in compliance with the regulations of the respective sectors;
b) semi-finished products, such as fibre, shives, powders, wood chips, oils or fuels, for supplies to industries and craft activities in various sectors, including the energy sector;
c) material intended for green manure practice;
d) organic material intended for bioengineering work or products useful for green building;
e) material intended for phytoremediation for the remediation of contaminated sites;
f) crops dedicated to educational and demonstration activities as well as research by public or private institutes;
g) crops intended for floriculture.
Paragraph 3: The use of hemp as biomass for energy purposes referred to in letter b) of paragraph 2 is permitted exclusively for the company's self-production of energy, within the limits and under the conditions set out in Annex X to Part Five of Legislative Decree no. 152 of 3 April 2006, and subsequent amendments.
In article 1 on the purposes of 242, paragraph 3:
Support and promotion concern the cultivation of hemp
finalized:
a) cultivation and processing;
b) to encourage the use and final consumption of semi-finished hemp products coming from supply chains that are primarily
premises;
c) the development of integrated territorial supply chains that valorise research results and pursue local integration and real economic and environmental sustainability;
d) to the production of food, cosmetics, biodegradable raw materials and innovative semi-finished products for industries of various kinds
sectors;
e) the implementation of bioengineering works, land remediation, teaching and research activities.
The ruling of the Court of Cassation (image of the document visible after the reported text)
“ The marketing of Cannabis Sativa L. and, in particular, of leaves, inflorescences, oil, resin, obtained from the cultivation of the aforementioned variety of hemp, does not fall within the scope of application of Law No. 242 of 2016 , which qualifies as lawful only the cultivation activity of hemp of the varieties registered in the Common Catalogue of Agricultural Plant Species, pursuant to Article 17 of Directive 2002/53/EC of the Council, of 13 June 2002 and which exhaustively lists the derivatives of the aforementioned cultivation that can be marketed; therefore, the conduct of transfer, sale and, in general, marketing to the public, in any capacity, of products derived from the cultivation of cannabis sativa L. constitute the crime referred to in art. 73, paragraphs 1 and 4, Presidential Decree 309/1990, unless such products are in fact devoid of a narcotic effect ".
