Both CBD (cannabidiol) and THC (delta-9-tetrahydrocannabinol) are among the many cannabinoids present in the cannabis plant. Although they have similar chemical structures, they interact with different receptors.
The key pharmacological – and consequent criminal – difference between THC and CBD is that one has psychoactive effects and the other does not.
Why is it important to clarify the definition of CBD from a criminal law perspective?
In the criminal law practice of both Hungary and other European countries, the definition of CBD as an active substance has become important.
Case C-663/18 before the European Court of Justice
A recent judgment of the European Court of Justice in Luxembourg clarified the criminal liability of two French citizens who had been convicted by the French courts for selling e-cigarettes containing CBD and sentenced to a suspended prison sentence.
The Hungarian ‘French Bulldog’ case
In Hungary, in a well-known case (the French Bulldog case), a shop in Budapest started selling CBD products in a pre-announced manner, which the owners claimed to be legal, taking into account European legal possibilities. However, on 10 September 2020, the Police raided to shop after the opening . The prosecution requested in the indictment that the defendants be sentenced to a custodial sentence to be carried out. Currently, as of January 2024, no verdict has been reached.
The CBD and the lines of criminal defence in Hungary
In addition to these well-known cases, references to CBD as an active ingredient are also very frequent in criminal proceedings and criminal cases, where defendants charged with drug trafficking offences (marijuana trafficking) claim that they intended to produce legal CBD oil. Judicial practice varies in response to this defence.
Is CBD a narcotic drug in Hungary?
CBD is not a drug under either the 1971 UN Convention on Psychotropic Substances or the 1961 Single Convention on Narcotic Drugs. Key to this is the low (negligible) THC content and the absence of psychoactive (psychotropic, mind-altering) effects.
However, two important conditions for criminal liability are that the THC content of the extracted substance must be negligible and the hemp plants from which the CBD was extracted must also have a low THC content.
What is CBD legally classified as in Hungary and in the EU?
At present, it can be stated that CBD is not considered a drug and this determines its criminal status. However, globally (i.e. for the legal system as a whole) there is no uniform regulation of CBD. Legal regulation across Europe can be described as sectoral. Two examples of sectoral legislation are given:
CBD as a food supplement
If the CBD compound can be administered to the human body in the form of a food supplement (e.g. tablets), then CBD is considered as a novel food under Regulation (EU) 2015/2283 on novel foods. Its marketing is currently classified as risky under a risk assessment by the Hungarian National Institute of Pharmacy and Food Safety.
Consequently, its unauthorised manufacture and placing on the market as a food supplement may constitute an offence and may be punishable by a fine and/or community service. Separately, a food chain supervision fine may also be imposed under Government Decree 194/2008 (31.VII.).
CBD in electronic cigarettes in Hungary
In the EU Court of Justice case (Case C-663/18) mentioned in the clarification of criminal liability, CBD was identified as a compound that can be added to electronic cigarettes. However, according to the Government Decree 194/2008. (VII. 31.) neither electronic cigarettes (nicotine vapour) nor electronic devices imitating smoking (devices for smoking nicotine-free vapour) may not be accompanied by CBD. Breaches of this can also result in administrative health and safety fines.
Is it illegal to order CBD online for personal use in Hungary?
The question arises whether it is unlawful to consume CBD or to order CBD on the internet for personal use. Despite the restrictive administrative legislation, it can be said that since CBD is certainly not a drug, it is not illegal to buy or order it for personal use and should not be subject to any sanction.
Can CBD be freely marketed in Hungary?
Also as stated above, the marketing of CBD may be subject to strict and constantly changing administrative rules, which may result in administrative fines and administrative penalties.
Summary
CBD is not a drug. European legislation has been fundamentally shaped by a European Court case in 2020. However, its legal use has not been uniformly regulated by either the European or the Hungarian legislator since then. The absence of criminal liability for extraction from certain hemp plants is clear, but administrative law can and does sanction certain uses of CBD.