CBD flowers in Italy: what the case law changes

Italian law no. 242 of 2 December 2016 liberalised the cultivation of industrial hemp (Legge sulla coltivazione della canapa), authorising certified low-THC varieties. The text was aimed above all at agricultural production — fibre, seed, seed oil — without clearly settling the fate of the marketing of dried flowers intended for non-food use. That ambiguity fed years of litigation between the sector's businesses and local authorities, with some regions or prosecution services applying restrictive interpretations.

The Italian Supreme Court (Corte di Cassazione, Sezioni Unite), in a 2019 ruling widely cited by the sector's lawyers, laid down a structuring principle: the marketing of derivatives of the hemp inflorescence, including in the form of dried flowers, is not automatically a criminal offence. The test adopted is that of the product's concrete "narcotic efficacy", that is its actual capacity to produce a psychotropic effect, rather than a general prohibition founded on the botanical nature of the product alone. That reasoning comes close to the logic adopted later by the CJEU at European level.

In November 2020 the CJEU held, in the Kanavape case (C-663/18), that a member state may not prohibit the marketing of CBD lawfully produced in another country of the Union, provided that CBD is extracted from an authorised hemp plant. That ruling, originally handed down in a French dispute, laid down a principle of free movement of goods applicable across all member states, Italy included. It does not say that everything is automatically legal everywhere, but it requires national courts to justify any restriction by a proportionate public health ground, and not by a prohibition of principle.

The coexistence of differing national rules with a European principle of free movement continues to produce grey areas, particularly for raw flowers, which are more contested than processed extracts in several European countries. France went through a comparable trajectory, with a decree banning flowers annulled by the Conseil d'État on 29 December 2022, retraced in our article on the decree banning CBD flowers. The Italian case illustrates the same mechanism: an ambiguous national framework, corrected step by step by the courts, national and then European.

For a French consumer, the Italian situation is a reminder that the status of a CBD product can vary from one member state to another, despite the European principle of free movement. In France the benchmark remains stable: a hemp-derived product is legal if the THC content of the finished product respects the 0.30% threshold, whatever its form — flower, extract or cosmetic.

Is the sale of CBD flowers legal in Italy today?

The situation remains debated depending on local authorities and how the litigation develops. The test adopted by the Italian Supreme Court, the product's actual narcotic efficacy, frames a case-by-case assessment.

Does the Kanavape ruling apply directly in Italy?

It lays down a principle of European law that can be relied on in every member state: a national ban on marketing must be justified by a proportionate public health ground, not by a general prohibition.

Does the Italian situation resemble the one France went through?

Yes, in principle: an ambiguous national framework for hemp flowers, corrected step by step by the courts. France settled the question by annulling its prohibition decree in December 2022.

Does CBD bought in Italy automatically comply with French rules?

No. The only test that counts in France remains the THC content of the finished product, below 0.30%, whatever the geographical origin of the imported product.