As a consequence of the entry in force of the law on legal cannabis, a certain number of uncertainties have arisen, and the intervention of the legislator is starting to be felt as needed.

an explanatory note from the Legislator started to be felt as needed. More than one year later, no explanatory note was delivered, and practitioners are facing severe difficulties in interpreting the consequences of the legal framework. Among these, some relate to the regime of protection providers can benefit of in their relationship with producers. Others entail the different regime of protection given to consumers against police. But there are also difficulties in understanding to which commodity group cannabis flowers shall belong.

Provider protection

The law remains silent on some issues relating to the sale of legal cannabis. In particular, no provision specifically entails the legitimacy of the conduct selling. According to paragraph 5 of article 4, the growth of cannabis plants having THC level lower than 0.6% is not against the law. Such provision specifically dealing with farmers have been considered to be applicable also to sellers.

For this reason, some believe that such latter category of subjects shall have the right to have farmers certifying that the cannabis their providing the seller with has a percentage of THC that is lower than 6%. Accordingly, it is reasonable to believe that cannabis have to be provided wrapped and sealed with a label explaining the place of farming and the characteristics of it growth including e.g. specifying which fertilizers and pesticides have been used or the results of any quality control.

 

Consumer protection - seizure of the products -

Although the sale of the so-called legal cannabis ought to be considered to be allowed, the law enables the police to seize the products in order to check through laboratory tests that the range of THC is within the limits provided by law. However, since the police does not have any fast mean to distinguish legal cannabis from the illegal one, the only way in which consumers can avoid any criminal liability should be by showing the receipts or some sort of information sheet clarifying that the level of THC contained therein respect the threshold laid down by law. In any case, a proper knowledge of the new law by police agents seems to be needed.

Consumer protecting - drug test -

Drug tests, that police generally make use of during traffic controls are not sophisticate enough to distinguish if an individual is on regular cannabis or on its legal version. Those tests alerts only of the presence of THC in people’s urine if it is higher of 50 ng/ml. Consequently, the test can be positive to THC even if the person is on legal cannabis. Therefore, the respect of good faith principle in contractual relationships imposes that consumers ought to be made aware of such possibility by a warning to be written on either the label or the information sheet. But people should also be of made aware of the fact that is preferable not to drive on legal cannabis.

Any statement having the opposite content may, instead, satisfy the crime of fraud in trades ex art. 515 of the Criminal Code.  Such statements generally lack to consider some figures that have to be taken into account like the level of daily consumption or the fact that metabolism works differently in individuals. A gram of legal cannabis with 0.6% THC contains 0.6 grams of THC. Generally, flowers that may be found on sale normally have a level of THC which is lower than 0.2%. Consequently, one may argue that a daily consumption of 3 grams should be revealed by tests but there is no certainty in that.

Group of commodities of belonging

In the silence of the law, providers tend to give the following “technical” description for cannabis flowers: technical use, non-therapeutic, edible, combustion.  Now, it is debated to which group of commodities legal cannabis ought to belong to.

On the one hand, there is no element inducing to consider it as being food. In fact, its sales do not seem to be conform to the strict regulation provided for that field (see art. 2, para. 2, let. a) of Law n. 242/2016). In particular, legal cannabis does not comply to the controls provided for food and oriented to ascertain the place of production, the typology of terrain, the way of growing plus pesticides and fertilizer used.

The explanatory note published by the Ministry of health pursuant to art. 5 of Law n. 242/2016) imposes some level of THC to be respected by food deriving from cannabis. The aforementioned note takes into account seeds, flour and oil but do not consider flowers. As a consequence, unless the institutions decide to intervene, no rules are provided for such matters.

On the other hand, legal cannabis is not to be considered as a belonging to the group of commodities belonging to tobacco otherwise it could not be produced and sold without the prior authorization of the state monopoly.

The lack of clarity of the law induced the Tobacco Store-owners Federation (Federazione Italiana Tabaccai, hereinafter: FIT) to formally ask the Ministry of health and the custom administration to clarify if it is legal or not for tobacconists to sell legal cannabis flowers; In the waiting FIT invited all tobacco store owners not to sell any cannabis flowers.