27 Mar opening of a cannabis light point of sale

Cannabis light refers to cannabis inflorescences that have a low THC content. The quantitative data of this active principle, which must be referred to in relation to the lawfulness of cultivation and consequent marketing, is established by Law no. 242/2016, which limits cultivation, the purchase and sale of cannabis in legal forms provided that the THC content is lower than 0,2%.

Furthermore, art. 4 of the legislative provision in question provides for a threshold, of the 0,6%, beyond which the THC of the substance cannot be exceeded under penalty of incurring the criminal case of reference, ex art. 73 d.P.R. 309/90: "If at the outcome of the check the overall THC content of the cultivation is higher than 0,2 percent and within the limit of 0,6 percent, no responsibility is placed on the farmer who has complied with the requirements of this law. "

In other words, if the amount of THC of the substance exceeds the threshold of 0,6%, such conduct may be prosecuted.

Since the launch of law no. 242/2016 some ministerial interventions followed, aimed at specifying in an even more precise way the normative issue it deals with here.

In tal senso, it appears possible to recall the circular of the MIPAAF of 23 May 2018, that, after having reaffirmed the fundamental principles of the law 242/2016, has focused on cultivation legislation in the horticultural sector, confirming that the cultivation of light cannabis can only start from certified seeds. It is therefore not possible to proceed with agamic reproduction, or by using the cuttings.

As often happens in our country, to partially replace the legislative body is the judicial one and, therefore, over the last few years, multiple jurisprudential judgments have contributed to defining a sector otherwise too dense with elasticity and uncertainty.

The Court of Cassation, with sentence no. 4920/19 of the VI Section, it focused on a question that has become, following the advent of Law. 242/2016, particularly controversial in the legitimacy jurisprudence of recent years, in particular that of the lawfulness of the marketing of inflorescences for recreational use that are derivatives of the cultivation activity made lawful by the aforementioned legislation of 2016.

In particular, the legislation in question, which aims to incentivize the agro-industrial hemp chain, allows the farmer to cultivate 62 variety of cannabis sativa L included in common catalog of varieties of agricultural plant species, according to the article 17 of Council Directive 2002/53 / EC, of the 13 June 2002, which are therefore excluded from the scope of the consolidated law on drugs (D.P.R. 309/1990).

From this cultivation, in accordance with art. 2 L. 242/2016, food and cosmetics produced exclusively in compliance with the disciplines of the respective sectors can be obtained; semi-finished products, which fiber, canapulo, powders, wood chips, was o carburanti, for supplies to industries and craft activities of different sectors, including the energy one; material intended for the practice of green manure; organic material intended for bioengineering or products useful for green building; material aimed at phytoremediation for the remediation of polluted sites; crops dedicated to teaching and demonstration activities as well as research by public or private institutes; crops intended for horticulture.

Furthermore, some conditions are foreseen that, if satisfied, make cultivation lawful.

On one side, the grower must comply with specific requirements indicated in art. 3 of the L. 242/2016 ("The grower is obliged to keep the tags of the seeds purchased for a period of not less than twelve months. It also has the obligation to keep the seed purchase invoices for the period required by current legislation ").

Secondly, there is a double limit of THC (active ingredient that induces doping effects) relevant for regulatory purposes: exceeded the limit of 0,2%, the grower cannot access the economic support scheme provided for by Community legislation (EC regulation 73/2009); if the amount of THC, while exceeding this limit, remains below the threshold of 0,6%, seizure by the judicial authority is prohibited and any form of criminal liability of the farmer who has complied with the aforementioned provisions set by law is excluded; where the limit of 0,6%, seizure and destruction of the plants are possible but at the same time the responsibility of the farmer who has acted in compliance with the aforementioned provisions is excluded.

The question that has been brought to the attention of the interpreters, as not explicitly addressed by the Legislator and therefore the subject of multiple pronunciations of the Court of Legitimacy, it concerns the lawfulness or otherwise of the trade in derivatives of the cultivation of cannabis sativa L (or hemp), such as inflorescences for recreational use (also known as marijuana).

The entry into force of the law 242/2016 he encouraged, precisely in the wake of the perceived customs clearance of hemp cultivation, the opening of commercial establishments whose commercial object it falls within (holding for sale e) the retail sale of inflorescences of the cannabis, other preparations based on cannabis, as well as of merchandising to topic.

The question of the criminal lawfulness of such conduct (and the administrative lawfulness of the possession of marijuana for personal use) it has therefore recently become particularly discussed and the object of attention on the part of mass media, not only in consideration of the ever-current debate on the legalization of drugs so-called. to read, but also taking into account the consequences that a certain jurisprudential orientation can produce on the lives of those who have decided to invest at an entrepreneurial level in this type of apparently authorized.

With the pronunciation in comment, the legitimacy judge affirms the criminal lawfulness of the conduct of sale of cultivation derivatives that has been carried out within the terms set out in the aforementioned law, and the administrative lawfulness of the conduct of possession of such substances for recreational use, on the basis of an argumentative path of particular interest, of which we intend here to indicate the salient features.

In the opinion of the Supreme Court, the law 242 of the 2016, according to the reading of his preparatory works, aims to promote the entire agro-industrial hemp chain for the purpose of developing the primary sector. From this it follows as a logical consequence that, where the legislator excludes the cultivation of cannabis sativa L from the criminally relevant bed of the Presidential Decree. 309/90, intends to subtract from this perimeter the overall production and commercial chain that draws the incipit from the cultivation implemented in compliance with the requirements of the aforementioned law and therefore lawful.

This is true, particularly, for cultivation derivatives that are not expressly covered by art. 2 of the L. 242/2016, as for the products already literally cited by the norm in question, no problematic question arises, commercialization being logically admissible. In fact, doubts arise, as has been said, only with regard to the trade of inflorescences for recreational use, as not expressly included among the purposes guaranteed by the legislation.

Tale impasse it is considered only apparent by the Court of Legitimacy, which believes that the lawfulness of the sale and possession for personal purposes of similar derivatives is implicitly inferable from a careful assessment of the purposes of the Law. 242/2016 and the relationship between said legislation and the consolidated law on drugs.

More precisely, it derives from the subtraction of the hemp cultivation activity from the regulatory framework of the Presidential Decree. 309/1990 and the consequent lawfulness it assumes ("Cascade"), where not opposed by sanctioning rules to this, every activity – including resale and recreational use – that finds its genesis in lawful conduct, which is the cultivation of hemp according to the parameters set out in the law 242 cit. and within the THC limits of 0,6%, which would constitute the threshold within which the effects of cannabis cannot be considered psychotropic or narcotic within the meaning of the consolidated text of 1990.

In summary, if the trader proves the lawful origin of the inflorescences of cannabis like the L. 242/2016 and the active principle is kept within the aforementioned threshold of 0,6%, no criminal responsibility can be attributed to him.

So far as, instead, proves to have exceeded the threshold, the precise cut, “as for the farmer, so also for the merchant […] criminal liability is excluded e, then, only administrative seizure is admissible (art. 4, comma 7, law n. 242/2016). A different conclusion can only be reached if it appears that the trader was aware (a fortiori, if the creator) of treatments of the product after purchase from the grower and aimed at increasing the THC content”.

In relation to the position of the buyer, he must be considered a subject who freely benefits from a lawful good, so that the consumption of the product deriving from a lawful production and sales chain pursuant to L. 242/2016 will not constitute an administrative offense pursuant to art. 75 d.P.R. 309/1990.

In other words, the exemption provided for the farmer and extended by the Supreme College to the retailer must also be considered applicable to the buyer, in the event of exceeding the legal threshold of 0,6%, as there is no reason to doubt that the buyer too, as well as the dealer, it is part of the agro-industrial chain protected by law and constitutes its final link.

The same considerations made for the retailer may apply to the buyer, relating to the illegality of the product where it has been subjected to treatments aimed at increasing the THC content that are known to the customer, however, a distinction must be made: a) if the buyer holds it for personal use, the administrative significance of the conduct can only be considered; b) I know, on the basis of the ordinary canons for the evaluation of the single drug law, the purchased product is intended for sale, the criminal offenses provided for by art. 73 of the aforementioned consolidated act, in any case having to ascertain the ability of the substance to produce a concretely detectable doping effect.

For completeness, it must be noted how the sentence fits into a jurisprudential panorama on the still wavering point, existing different precedents, like the Cass judgments., sez. WE, 17 December 2018, n. 56737 e Cass., sez. WE, 10 October 2018, n. 52003 that support the criminal relevance of the conduct described above, relying now on the non-inclusion of the trade in inflorescences for recreational purposes among the purposes pursued and among the activities expressly permitted by the legislation in question, now on the exclusive traceability of the exemption to the farmer and not to the other subjective categories of the supply chain.

Among the most interesting interventions, sentence no. 12348 of the 19 December 2019 by the Court of Cassation - United Sections, which excluded the punishment of the conduct of cultivation of narcotic substances for personal use, deductible (also) from the minimum size of the activity carried out in a domestic form, from the rudimentary techniques used, by the scarce number of plants and by the modest quantity of obtainable product, as well as the lack of indicators of entering the drug market.

On a particularly important issue, a few months earlier, the Court of Cassation had still expressed its opinion, III Sez. Pen., with the pronoun n. 25559 of the 10 June 2019, according to which the possession of drugs of a quantity lower than the table limits does not in itself exclude the criminal relevance of the conduct, because exceeding the limit is only one of the relevant regulatory parameters for the purposes of asserting responsibility, and the exclusion of the destination of the drug for strictly personal use can be considered by the judge also by virtue of further circumstances of the action.

In relation to the possibility of being able to initiate a cannabis light resale business, it should be noted that no special certifications or specific permits are required. In fact, you can do it in the same way you can open a bar, a grocery store, a mobile phone shop, a tobacconist, etc.

Moreover, there are also issues to consider in setting up the aforementioned business:

• cannabis and light marijuana to be marketed must be accompanied by a specific certificate of origin, certifying the place of origin and quality of the seeds used for cultivation. In particular, the varieties of plants judged light are those present in the Common Catalog of the European Union: it's about 67 different species, all with a THC content that complies with the regulatory data referred to in L. n. 242/16;
• light cannabis and light marijuana must also have a laboratory certificate, certifying the values ​​of all the main substances they contain. This document must always be attached to the sale, both wholesale and retail;
• packs of light marijuana must also have information relating to the batch of origin;
• such packages must also be sealed and hermetically sealed, whether it is those sold individually at retail, and both in the case of wholesale supplies.

While considering the marketing of derivatives of cannabis sativa L., provided it derives from cultivations carried out in compliance with L. 242/2016 and devoid of doping efficacy, also in light of the ruling of the United Sections of the Cassation, it will be advisable to market products with THC not exceeding 0,2%.

It also seems appropriate, also to facilitate any checks of the FF.OO., provide each sample with a copy of the laboratory tests, carried out for this purpose, so as to avoid the risk of seizures; you will have to observe, in essence, extreme attention and precision in labeling, with particular reference to the indication of the batch of origin, as well as the correct sealing of the package.