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When it comes to cannabis, there are a lot of questions about what is legal in different countries. What parts of the plant can be used, and for what purposes… Recently, Italy put out two separate decrees related to cannabis, which set up the Italian cannabis contradiction.
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Italy is an example of a country with a veritable patchwork of cannabis laws. Using cannabis isn’t illegal, for example, but possessing it and selling it is. (This is one of my favorite discrepancies in cannabis law, and it happens all over the place). In Italy punishments for first time offenders are generally light, and repeat offenders generally only incur administrative penalties (like the loss of a driver’s license, or something of that nature).
As per the usual, sale and supply crimes are illegal. Offenders caught selling can incur up to six years in prison – a much lighter sentence than offenders caught selling harder drugs like heroin, where the penalty can be up to 20 years in prison. Hemp cultivation is legal in Italy. A clarification was made in December 2019 by Italy’s Court of Cassation to Italy’s Consolidated Law, which specifies that personal hemp cultivation is, in fact, not illegal. The specification states that cultivating small amounts of narcotic drugs is decriminalized.
What about CBD?
To make things a bit tricky, CBD was recently classified as a narcotic in Italy. This despite the fact that many countries, including the EU in general (and this is important), have moved toward much more lenient laws concerning CBD. CBD – or cannabidiol – is one of the more prevalent cannabinoids found in the cannabis plant, but unlike its counterpart THC, doesn’t produce a psychoactive effect, making it a much more accepted medicine in many places that still hold high-THC cannabis as illegal.
Not so with Italy. The Ministry of Health in Italy recently made a decree that added CBD to Italy’s list of medicines. Subsequent to the decree being made, Italy’s Customs and Monopoly Agency started warning retailers not to have or sell products that contain anything derived from cannabis sativa, even if from hemp.
This is only half the story though, because Italy recently enacted two separate decrees that are in conflict with each other. The first (as mentioned) makes hemp extracts narcotics, requiring an authorization from the Italian Medicines Agency to produce. The second, coming from the Agriculture Ministry, now lists hemp flower extractions, as an agricultural product instead of an actual drug. If you’re following along, this would include CBD. And if you’re really following along, it means not only is Italy now in contradiction to EU standards, but its in contradiction to itself.
The other decree
It should be remembered that governments are made up of different bodies, and if not working in concert, those different bodies can sometimes enact legal mandates that are in opposition to each other. So is the case right now. The other decree recently enacted in Italy was done by the Agriculture Ministry, and this decree states that extractions from hemp flowers are agricultural products for medicinal use (but not actually medicines). This, of course, opens up Italy’s market for possibly hundreds, or even thousands, of new products based on hemp extractions.
The decree was approved by Minister of Agriculture Teresa Bellanova, and listed back in August. In the listing, hemp flower is ‘canapa infiorescenza’, and its official place is on the table of agricultural products, under ‘medicinal plants’.
Italian cannabis laws: why the discrepancy?
This is no small discrepancy. One decree states that CBD and other hemp derived extracts, are narcotics that requires special permissions. And one decree says that any extraction from hemp flowers can be considered an agricultural product and sold on store shelves without a problem. And that includes CBD.
What makes the Italian cannabis contradiction that much more interesting is that there seems to be a reason for the decree from the Medicines Agency that makes CBD a narcotic, and if you haven’t guessed it yet, it has to do with putting money in corporate pockets. Enter Epidiolex!
Epidiolex is a CBD-based drug produced by UK corporate enterprise GW Pharmaceuticals. GW Pharmaceuticals just requested the ability to put its product on Italian shelves, as it rolls it out to a number of countries including France, Germany, and Spain. Making CBD a narcotic limits other products from being able to be sold, especially if they require authorization from the Italian Medicines Agency, which seems to be working in concert with GW Pharmaceuticals (this isn’t a statement so much as personal supposition).
Epidiolex is actually the first cannabis-derived drug to be approved in the US by the FDA, a position that made it headlines back in 2018. While its not my job to make assumptions about political leanings toward pharmaceutical ventures over smaller independent companies, it sure looks like there are political leanings toward pharmaceutical enterprises over smaller independent companies.
The decree by the Medicines Agency, which makes CBD a narcotic, specifically relates to extractions of hemp flowers, but not other uses of hemp flowers. So, legally, it doesn’t have an effect on smokable hemp flowers according to the Customs and Monopoly’s cease and desist order. Smokable hemp flowers are actually very popular in Italy. If CBD is really considered so bad, then it stands to reason that smokable hemp flowers would also be illegalized. Rather, it shows cracks in Italy’s logic – and preferential treatment toward pharmaceutical companies, that the products made illegal, are the ones most in competition with Epidiolex. Italy would probably have a losing battle if it tried to illegalize smokable hemp flowers now, but it creates a second Italian cannabis contradiction by making CBD a narcotic in extracts only.
When did it all happen?
Now we know there are two Italian cannabis decrees that are in opposition to each other, but when did they come about? The first decree to be enacted is the one by the Agriculture Ministry that was put into effect in August of 2020 when hemp flower extracts were added to the table of agricultural products. The second decree is the one made by the Italian Medicines Agency which makes extracts of hemp flowers narcotics, and it was put into effect October 15th 2020. There was somewhere in the neighborhood of two months in between. That means two months of the Agriculture Ministry’s decree making hemp flower extractions agricultural products before the Medicines Agency came in with its own decree working in the opposite direction.
When medicinal marijuana was first legalized in California, there were clashes between legal patients and the feds, since cannabis was still (and is still) federally illegal. The opposition between states rights and federal law caused havoc until President Obama made the decision to stop cracking down on people legally using in legal states, even if federal law didn’t cover it. This came years after he entered office, much of which time he spent cracking down on medicinal patients.
Right now, there is a similar case of France vs the EU which will have implications in Italy now as well. France is currently fighting to uphold its ability to set its own laws in terms of legal amounts of THC in CBD oil, and the ability to keep products out of the country that don’t meet France’s standards. EU law stipulates its fine so long as the THC amount doesn’t go above .2%, and that one EU country can’t limit imports from another EU country if EU standards are met. France prefers 0% THC, which makes an essential ban since all CBD oil will have at least trace amounts of THC, and therefore limits the ability for imports from other EU countries. Just like in the US, it’s a member state vs a federal body.
If France wins, Italy can restrict CBD however it wants. If the EU wins, Italy will have to go by EU law, or its citizens can bring litigation against their government. Right now the people of Italy are being told two very different things. On one hand they’re being told that its perfectly cool to freely buy and sell products with hemp flower extracts. On the other hand they’re threatened with narcotic law punishments for doing the exact same things.
Cannabis laws are confusing, and contradictory, and often effected by political and economic issues that further confound what was already unclear. Italy is just the next example. Right now the two decrees create an Italian cannabis contradiction, and how that will be sorted in the weeks and months to come, is nearly impossible to predict.
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When most people think about getting drug tested for a job, they tend to think the test is looking for drugs like cocaine or cannabis. They might assume that hemp-derived CBD oil purchased over the counter from a convenience store won’t cause any problems, given it’s not supposed to contain any THC. But is it safe for someone to use CBD-rich products derived from hemp (with 0.3% THC or less) before a drug test? In reality, it’s risky, though the reasons why are complicated.
In order to understand the conundrum, it’s important to understand what the drug tests are looking for. Tests look for the analytes of drugs, rather that the presence of the drug itself. So, instead of testing for “cannabis” (which contains over 100 cannabinoids), tests look for just two of the cannabinoids: THCA and THC.
Tests aren’t looking for CBD, but given that there is currently no FDA regulation on CBD products (except the seizure drug Epidiolex), there’s no certainty that hemp-derived CBD oil is actually THC free. And over the past few months, reports have surfaced that people in multiple states have been fired or not hired due to testing positive for THC after using CBD-rich hemp products.
Guy DuBeau, a Wisconsin-based attorney who has written legal advice for people whose CBD usage resulted in a failed drug test, said that a big reason these failures happen is because hemp-derived CBD products are not regulated.
“You are getting companies importing stuff that is supposed to test as hemp, but it actually tests at three to four times the amount of THC it should have,” DuBeau said.
“This is something we need to figure out on the federal level so people can actively take CBD,” Rouse said, adding that she has been “in conversations with Sen. Mitch McConnell’s office,” specifically about the issue of raising the testing limit for THCA on Department of Transportation drug tests.
Currently, the Department of Transportation mandates a very low testing limit of 50 nanograms of THC per milliliter (ng/mL) of blood. Rouse has proposed to McConnell’s office that the department raise its testing limit to mirror the World Anti-Doping Agency (WADA), who does the drug testing for Olympic athletes. In 2013, WADA increased its testing limit to 150 ng/mL of THC.
“I am a small person and I take 100 milligrams of CBD a day,” Rouse said. In that dose of CBD, there’s a small enough amount of THC where Rouse said she “would fail a drug test by the [Department of Transportation], even though I am not actually taking THC and not being intoxicated by it.”
An individual’s body type and metabolism matter, too. “If you have more muscle and less fat, cannabinoids will not stay in your body as long,” said Rouse.
None of the experts Cannabis Now spoke to could say if the method of consumption of hemp-derived CBD, including edibles, topicals, tinctures and vapes, would affect test results,
Ultimately, the experts recommended that if you are using high doses of CBD products that contain trace amounts of THC, you should discontinue use at least a week before you anticipate a drug test to minimize the risk of a false positive. Rouse suggests that if you get one, request “a confirmatory test,” which does a better job of distinguishing between different cannabinoids, but also has a lower limit of 15 ng/mL.
Given the prevalence of this issue, Rouse’s home state of Kentucky is currently considering a bill, which, if passed, would give CBD users in that state protections in hiring and firing. However, as Rouse said, the drug-testing reform and CBD regulations would have to be enacted at the federal level, not just in the states, before people can consume hemp-derived CBD worry-free.
TELL US, has CBD ever given you a false positive on a drug test?
Originally published in the print edition of Cannabis Now. LEARN MORE
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