CBD consumption: what are the risks in the event of a police check?

Is CBD legal in France?

In France, and elsewhere in the European Union, the legal status of CBD has seen many twists and turns since the mid-2010s. Let's go back a little to better understand the legal saga and its outcome.

The brief history of the legal status of CBD in France and the EU

It all starts with the iconic court case known as "Kanavape", named after the French company that was the first to launch an e-liquid for electronic cigarettes with CBD extracted from hemp of the Cannabis L. Sativa variety. A few weeks after its marketing, at the time in full boom of vaping in France, justice prosecuted the two founders of the company for having marketed an "illegal" product, even though it was devoid of any effect psychotropic. The prosecutor referred to a "non-compliance with the law in force in the fight against narcotics".

In 2018, the Court of Appeal of Aix-en-Provence upheld the conviction of the founders of Kanavape, who then brought their case before the Court of Justice of the European Union (CJEU). And contrary to expectations, the EU's supreme judicial authority will rule in favor of Kanavape and find the French ban on the marketing of CBD extracted from cannabis "contrary to European law". Indeed, according to the CJEU, CBD is neither a narcotic nor a medicine. Therefore, it can be sold freely in all EU countries, provided that national regulations on product safety and protection of public health are complied with. Any decision to the contrary by a member country would contravene the principle of free movement of goods.

The legal status of CBD today

Today, CBD-based hemp products are authorized for sale and consumption in France, provided that they meet the sanitary and hygiene conditions and, above all, that they display a rate almost zero THC (less than 0.3%). Recall that THC is the molecule responsible for the psychotropic or "high" effect of recreational cannabis. In short, CBD is legal in France provided that it is neither adulterated nor narcotic.

Non-psychotropic cannabinoids such as CBG, CBN and CBC are also legal, as long as they do not present any psychotropic effects or risk of addiction. They are mainly found in full-spectrum or broad-spectrum CBD products, including oils, flowers and certain resins. For the past few months, 321CBD has been offering CBG and CBN oils, which are perfectly legal (and good for your health).

In 2023, the Ministry of Health, advised by the National Agency for the Safety of Medicines and Health Products (ANSM), cracked down on the wave of new cannabinoids that began to appear on the market. European market since December 2022, probably driven by the US market. These include THCP, THCV, HHC and HHCP. The last two substances were formally banned on June 13, 2023, with good reason in our view, because of their similarity to THC and their psychotropic effects.

To summarize, and before going to the police checks, here are the legal hemp molecules, the illicit molecules and the molecules which are in a kind of gray zone and which should soon be hit with a ban according to our information :

Warning: Unlike alcohol, illegal drugs, including THC in cannabis (and fraudulent CBD products), have no tolerance threshold. They are illicit to detection!

CBD and other non-psychotropic cannabinoids are therefore legal in France... but are there any risks in the event of a police check?

CBD and saliva tests

In France, the police use saliva tests to detect the presence of drugs in drivers during roadside checks. Objective: to check whether drivers are under the influence of illicit substances, including cannabis, cocaine, opiates, amphetamines and methamphetamines.

The saliva test may be ordered by law enforcement as part of a routine traffic check, following a traffic violation, or simply if the police agency suspects that a driver is under the influence of narcotics (suspicious behavior, agitation, etc.).

Procedure of a saliva test ordered by the police

If the driver is "chosen" for the test, they will be required to provide a saliva sample. The sample is generally taken using a stick that the driver must keep in the mouth for between one and two minutes. The sample is then placed in a test device that will detect the presence of illicit substances, if any. The result is usually available within minutes. If the test is negative, the procedure comes to an end. On the other hand, if it is negative, a second sample will have to be taken (saliva or blood), but this time it will be sent to the laboratory for a more detailed analysis. In the meantime, the driver's license is suspended until the results are obtained (maximum duration set at three days).

Note: if the second sample is also salivary, you have the possibility of requiring a more precise blood test, in order to possibly challenge the results of the test in court, especially if you are under medical treatment based on cannabis products (France has indeed launched a major experiment with drugs containing THC and CBD in 2021, as the Public Service website explains.

Will CBD result in a positive saliva test?

CBD is not sought by law enforcement in the saliva test. Other non-psychoactive cannabinoids like CBG, CBN and CBC are also not affected. Police are looking for cannabis (through THC), cocaine, heroin, opiates, amphetamine and methamphetamines. But there's a big nuance: if you've consumed a deceptive or fraudulent CBD product that hasn't been verified for THC by an independent lab, you risk a positive cannabis test and penalties.

Another important point: if you mainly consume full-spectrum CBD products, especially oils, you will add traces of THC until you have a more or less significant dose which can eventually result in a positive test. Four factors will then come into play:

1. The absorption of THC by the body: the half-life of THC varies according to several factors such as age, sex, weight, percentage of fat and speed of metabolism. People who have a fast metabolism and/or a low body fat percentage will eliminate THC faster. But beware: by stacking full-spectrum products on a regular basis, THC can build up in the system and give a positive test even in people with a fast metabolism;
2. Sensitivity of the tests: The saliva tests used by law enforcement in France can detect THC in saliva for a period of 4 to 6 hours after the last consumption. These tests are designed to detect THC levels typical of recent recreational cannabis use. Consuming a full spectrum CBD product at 0.3% THC will not result in a positive saliva test unless MASSIVE consumption;
3. Labels of CBD products: read the labels of CBD products carefully to understand their composition. The label should indicate whether the product is THC-free or contains up to 0.3%. But beware: the accuracy of the THC content stated on the label is not guaranteed if you source from dubious suppliers;
4. The method of consumption of full-spectrum CBD products will also affect THC detection. For example, THC from ingested CBD oil can stay in the system longer than THC from inhaled CBD vapor.

Overall, THC persists in saliva:

• For 8 hours for occasional user;
• For 24 hours for a regular consumer;
• Up to 8 days for those who use illicit THC or legal full-spectrum CBD several times a day.

CBD and blood and urine tests

Blood tests are generally used to detect the presence of THC (and other illicit substances) in the blood, most often to confirm the results of a positive saliva test during a roadside check. Blood tests are able to detect the presence of THC for a period ranging from a few hours to several days after consumption depending on the frequency of use and the metabolism of the individual.

For an occasional user of full-spectrum CBD (less than 0.3% THC), the risk of being positive in a blood test is almost nil a few hours after the last consumption. However, for a very regular user of full-spectrum CBD, THC may remain detectable in the blood for several days after the last consumption. Caution is therefore advised.

In France, urine drug tests are mainly used in the context of judicial controls, work-related medical examinations, doping controls in sport or for medical reasons. We therefore leave the framework of traffic control here.

Unlike blood tests, urine tests do not detect THC itself, but rather its metabolites, which are the breakdown products of the molecule. These metabolites can remain in the urine for longer periods than THC remains in the blood.

Are you an occasional consumer of full-spectrum CBD products? THC metabolites can remain detectable in urine for approximately 3-5 days after the last consumption. For a regular user, THC metabolites may remain detectable in urine for 10-15 days or even longer after the last consumption.

You will understand that urine tests are much more sensitive than blood tests and can detect low concentrations of THC metabolites. Therefore, even if you have consumed full-spectrum CBD containing less than 0.3% THC, the urine test may still be positive, especially if you are a regular user.

Positive saliva then blood test: what are the risks?

Driving under the influence of illegal substances (drugs or narcotics) is governed by Article L. 235-1 of the Highway Code. As explained above, there is no minimum threshold of tolerance for the presence of narcotics in the body, unlike alcohol. In other words, even a residual trace can lead to penalties.

A driver whose saliva test is positive for narcotics risks a loss of 6 points on his driving licence, a prison sentence of 2 years and a fine of up to 4,500 euros.

If other aggravating factors come into play, the penalties may be more severe. For example, if the driver is under the influence of alcohol and drugs or illicit substances at the same time, he faces a prison sentence of 3 years and a fine of 9,000 euros. In the event of a bodily accident caused by a driver under the influence of narcotics, the penalty can be up to 10 years in prison and a fine of 150,000 euros. In addition, the damage caused by an accident of this type will generally not be covered by the insurance of the driver, who will have to personally bear the costs of compensation (remember the Pierre Palmade case).

Note: refusing to submit to a saliva test is now considered an offense in its own right, "equated to an admission of guilt", according to the legislator. Drivers who refuse to take a saliva test are committing an offense known as "refusing to submit to checks", which is also punishable by law. The consequences of this refusal can be severe.

Saliva test and CBD: know the procedural flaws

Motorists who believe their rights have been cheated can challenge a sanction for driving under the influence of narcotics, in particular because of a procedural defect, where applicable. As you must know your obligations, you must also know your rights, in particular the conditions and the rigor necessary to carry out the procedures of control by the forces of law and order.

Here are the two main factors that could possibly lead you to challenge a decision that you consider unjustified during a roadside check:

1. Forgetting to notify the motorist of the level: once the saliva test has been carried out (and positive), the police officer must inform the driver of the result and tell him the narcotics level detected. If this information is not provided, the procedural defect may be retained in the event of a dispute by the motorist;
2. Forgetting to inform the driver of the right to request a counter-analysis: if the saliva test is positive for an illicit substance, the driver has the right to request a counter-analysis to confirm or invalidate the initial result, most often with a blood test, which is more precise and more reliable. The police officer must inform the driver of this right. If the information is not communicated, the procedural defect may be retained.

If one of these steps is omitted during the check, the driver can challenge the penalty before the court in accordance with the deadlines and procedures in force. For example, you have 45 days to contest a fine, and you must contest the decision before the hearing date indicated on the summons, if applicable.

The challenge of a fine is made by sending a registered letter with acknowledgment of receipt to the address indicated on the notice of violation. Clearly state the grounds for your dispute and provide evidence to support your claim. Note that you can also challenge the decision online on the website of the National Agency for the Automated Processing of Infringements (ANTAI).

Warning: Challenging a procedural sanction does not necessarily guarantee its reversal. The court will assess the evidence presented and determine whether the procedural defect is sufficient to overturn the sanction.

CBD and driving: a matter of common sense

Certainly, CBD and other non-psychotropic cannabinoids do not cause psychotropic or intoxicating effects that could seriously affect your cognitive functions and therefore your ability to drive a vehicle. On the other hand, CBD products can cause drowsiness and/or a drop in concentration in some individuals, especially if it is a hemp product extracted from the Cannabis Indica variety.

The soothing and relaxing effect, which can induce a feeling of drowsiness, is generally sought by the consumer, especially to manage stress, anxiety and sleep disorders such as "insomnia". But keep in mind that these properties will inevitably impact your vigilance at the wheel.

Unlike alcohol or narcotics, CBD does not impair cognitive function or balance, which makes it inherently less dangerous for driving (all other things being equal). But the risk is there, especially on long journeys or in demanding driving conditions (night, rain, etc.).

Safety should ALWAYS be your priority. If you are unsure of your driving abilities after consuming CBD, it is best to wait or use other means of transportation. This will protect not only your own life, but also that of other road users. Also, NEVER drive after consuming CBD for the first time (or another form of hemp for the very first time), as you have no idea how the product impacts your alertness while driving.

CBD and driving: the new case law (June 2023)

The Court of Cassation issued a decision on June 21, 2023 regarding driving under the influence of CBD. In this case, a motorist had been found guilty of driving under the influence of narcotics and speeding by the criminal court. He received a two-month suspended prison sentence, a six-month license suspension and a fine of 50 euros.

However, the Court of Appeal overturned his conviction for driving under the influence of narcotics, arguing that the toxicological expertise had not indicated the level of THC (tetrahydrocannabinol), as required by the decree of the December 13, 2016 on the procedures for screening for substances indicating the use of narcotics (and as we mentioned in the section "procedural defects". The Attorney General of the Court of Appeal had then lodged an appeal in cassation, arguing that Article L 235-1 of the Highway Code does not impose a THC threshold. Moreover, according to the magistrate, the decree in question only establishes a detection threshold and no incrimination.

The Court of Cassation therefore overturned the judgment of the Court of Appeal, recalling that Article L 235-1 of the Highway Code criminalizes driving after drug use, regardless of the results of the blood tests or saliva. The mere presence of a substance classified as a narcotic (THC) in the driver's body is sufficient to constitute the offence, regardless of the quantity consumed.

In summary: what was said in this article still applies. Common sense has simply been confirmed by the Court of Cassation. The conclusion remains the same: beware of adulterated or fraudulent CBD products that contain more THC than the law allows, and beware of full-spectrum hemp products which, when consumed heavily, can increase THC levels. in saliva and blood.

Reference: Court of Cassation, Criminal Division, June 21, 2023, case no. ° 22-85.530.

CBD and police control: 7 tips to avoid unpleasant surprises

As always, it is common sense that will allow you to calmly consume good CBD without taking unnecessary risks. Here are 7 tips to avoid unpleasant surprises and make CBD the best ally for your daily quality of life:

1. Keep your proof of purchase: if you are in possession of CBD products, keep your invoices and purchase receipts with you, for example in your wallet. This is irrefutable proof that you obtained your products in a legal manner;
2. Avoid transporting unpackaged hemp or CBD, especially in "commercial" quantities. If you must transport CBD, ensure that it is packaged products in their original packaging with a label clearly indicating their composition and origin;
3. If you are stopped by law enforcement, stay calm and cooperate with the officers. Aggressiveness and defensive behaviors will only make the situation worse;
4. It's all about planning. If you know you will have to drive, plan your CBD intake accordingly. Avoid consuming full-spectrum products containing traces of THC if you will be driving within hours. Also keep in mind that even pure CBD, without any trace of THC, can cause drowsiness and impact your alertness on the road;
5. Avoid mixing CBD and alcohol, as the combination of the two can increase drowsiness and decrease reaction time.

Reference shop in legal hemp products in France, 321CBD offers you good traceable, sourced and rigorously tested CBD... a treat for the body and the mind in complete serenity and at the best price!