Why can cannabis be bought in Spanish tobacco shops?

Right during the strict COVID-19 state of emergency and lockdown imposed by the government on March 15, we started to see CBD flowers on display in tobacco shop windows. Buying high-CBD cannabis buds at tobacconists had never been an option before but the lockdown seemed to have turned the whole world upside down. The pictures below are, in fact, from a product bought at a tobacco shop in San Sebastián (Guipúzcoa) during lockdown.

In a number of cases, this innovative product was to be found in none other than the shop window, as you can see in the side picture taken by our colleague Kushka in Barcelona. Being unable to figure out what had really triggered such a big change, we started to wonder how come Spanish estancos looked so much like the Swiss ones. The answers had no connection with any change in the country's policies yet we wanted to share them with you and seize the opportunity to go through the existing legislation in this regard.

When asked about it, tobacconists claimed that those bagged nugs were not the typical cannabis nugs known for delivering a potent high, plus they were used by patients to ease their pains and wind down due to their multiple therapeutic properties. "CBD is pretty in right now, it's not a drug".

Not at all convinced by these statements, we turned to those who had played a major part in the country's cannabis industry for several decades and are familiar with the latest changes in marijuana legislation on the lookout for a more specific answer. We were welcomed by activist and founder of Fundación Renovatio, Iker Val. "I see a clear parallelism between the sale of hemp in tobacconists and the story of cannabis clubs: some try to make a few steps forward, which aren't necessarily in line with the legislation in force or the agreements that apply to the product."

The legal framework governing the sale of CBD flowers in Spanish estancos

Without going too deep into where these hemp flowers are produced, we have analysed the legal framework that applies to the distribution of CBD in tobacco shops. Being a product available at tobacconists, we've tried to figure out the category CBD flowers would fall into, the conclusion being "novel tobacco product and tobacco for oral use" or "herbal smoking article". In any case, a CBD product sold in a Spanish tobacco shop will have to be subject to approvals by the Spanish Tobacco Market Commission, an institution that had its say on the matter this past June. As stated by the Spanish Association of Tobacconists (Unión de Asociaciones de Estanqueros de España) on June 24, the Spanish Tobacco Market Commission had sent tobacco shops a letter banning the sale of CBD products.

Leaving this notification from the most important competent body in the area aside, let's look at the steps tobacco shops should take to sell hemp flowers legally.

Steps to take if defined as novel tobacco product

As referred to in article 23 of the Royal Decree 579/2017, of 9 June, which regulates certain aspects relating to the manufacture, presentation and sale of tobacco products and related products, any novel product would be subject to the following obligations:

1. Manufacturers or importers who intend to commercialise a novel tobacco product shall notify the Directorate-General of public health, quality and innovation, through the EU Portal-CEG, and following the format established in the Decision of implementation (EU) 2015 / 2186 Commission of November 25, 2015, the following information:
   - a detailed description of the product of the new tobacco in question.
   - a description of the instructions for use.
   - information on the ingredients and emissions that includes article 6.

2. A previous communication should attach the following documents:
   - Available scientific studies on toxicity, addictive and attractive power of the tobacco product innovative, in particular as regards their ingredients and emissions.
   - The available studies, as well as summaries of them, and the market research on preferences of different groups of consumers, including young people.
   - Other relevant available information, including an analysis of risk/benefits of the product, the purposes specified on the abandonment of tobacco use and the purposes specified on the initiation to the consumption of tobacco, as well as the effects on the perception of consumers expected.

3. The communication referred to in the preceding paragraphs shall be made six months before the date of the intended marketing of the product.
4. In addition, communicate any modification of the information referred to in the preceding paragraphs.
5. The Directorate-General of public health, quality and innovation will check that the documentation provided complies with the provisions of paragraphs 1 and 2, and may require the remission of data not provided until complete documentation. Also you can ask, accordingly, manufacturers or importers additional testing or the submission of additional information.

Steps to take if defined as herbal smoking article

As referred to in article 37 of the Royal Decree 579/2017, of 9 June, which regulates certain aspects relating to the manufacture, presentation and sale of tobacco products and related products, any herbal smoking article would be subject to the following obligations:

1. Manufacturers or importers who intend to commercialise a herbal smoking product shall notify the Directorate-General of public health, quality and innovation, through the EU Portal-CEG, and following the format established in the Decision of implementation (EU) 2015 / 2186 Commission of November 25, 2015, the following information:
   - The list of ingredients used in the manufacture of products specified by brands and types.
   - The quantities of these ingredients.

2. In addition, the manufacturers or importers of herbal products for smoking shall submit to the Directorate-General of public health, quality and innovation, prior to its commercialization, the design of labelling and packaging for each brand and type of product in order to check that it meets the requirements set out in article 39.
3. The Directorate-General of public health, quality and innovation will check that the documentation provided conforms to the provisions of the preceding paragraphs, and may require the remission of data not provided until complete documentation.

The legal framework governing the sale of CBD flowers in Spain

In addition to tobacco shops, there's an increasing number of websites selling CBD flowers online. But, according to Spanish legislation, any cannabis flower grown and distributed is ruled by international conventions and thereby needs the approval of the Spanish Agency for Medicines and Health Products (AEMPS) even if its THC content is lower than 0.2%. For now, the AEMPS only allows the production for therapeutic and scientific use. As for the manufacturing of flowers for food purposes (see CBD oils), an authorisation from the Spanish Food Safety and Nutrition Agency (AESAN) would be necessary. Only the production of hemp fibre and seeds is permitted.

These limitations on the purpose of cultivation are surely the reason why in 2020 there are less than 1000 acres of land devoted to the cultivation of hemp. So you can get the picture, let's compare that figure with the share of land dedicated to hemp in another country, say in France where, in 2020, the acres of land committed to hemp cultivation were near 15,000. In other words, hemp production in Spain covers only 6% of the land dedicated by France. The number of acres of hemp in 2018 in Spain was 100, which proves the evolution of this kind of crop.

When asked about this evident rise, Iker Val says that "the limitation to the purpose of hemp cultivation, alongside the high demand for light cannabis in Europe, have fueled the expansion of industrial hemp crops devoted to the production of not only hemp fibre but also of cannabis flowers with THC levels under 0.2% and of biomass-extracted active substances".

"Long story short"; he concludes, "the same old things that you usually find here in Spain". "On the one hand, a trade flow that aims to standarise the product and a line-up of CBD flowers firmly established online. And, on the other hand, the fact that this is all happening in a context of partial illegality. We are therefore in a grey path that could lead to future regulation, although my experience in the field tells me that it could take years for the government to address the issue effectively".