Confusion over what legally constitutes cannabis has sparked calls to amend a law that is just six months old. 

A petition presented to parliament urges lawmakers to amend Malta’s cannabis laws to explicitly protect forms of cannabis that do not provide any ‘high’ from the threat of prosecution. 

The petition was tabled by the founder of cannabis lobby group Releaf, Andrew Bonello, and comes after police pushed ahead with a high-profile drug trafficking case concerning cannabis. 

Medical doctor and Pain Clinic founder Andrew Agius stands accused of importing and trafficking the drug after police seized CBD cannabis flowers from his establishment last February.

CBD, or cannabidiol, is the second most common compound in cannabis after THC. While THC is what gives cannabis its psychoactive effect, CBD has no psychoactive properties. 

Agius’ case revolves around the interpretation of a definition included in a December 2021 reform that effectively legalised the restricted use of cannabis for personal use. 

The revised law defines cannabis as the flowers, leaves and resin of the cannabis plant and notes that CBD “products” containing less than 0.2% THC are excluded from that definition. 

But what constitutes a CBD “product”? 

When Agius was charged in court, prosecutors argued that given that the CBD flower they seized from him forms part of the cannabis plant, it is a narcotic and subject to seizure and prosecution. 

Agius’ lawyers, on the other hand, say that the flower in question contains less than 0.2% THC and is a CBD ‘product’, much like CBD oil, shampoo or facial cream, which can all be sold without restrictions. 

The prosecutor leading the case was unmoved by that argument, Malta Today reported, with inspector Marshal Mallia telling the court that the law makes no distinction between cannabis flower with a high or low THC content. 

Agius’ prosecution caught Malta’s cannabis smoking community off-guard and attracted negative international press, coming as soon as it did after the passing of a law that government MPs boasted was all about ensuring cannabis users were not criminalised. 

According to Releaf, Agius is not the only person to run into legal trouble related to CBD cannabis. 

“Different people from business owners to private citizens have encountered different problems at different levels,” Releaf told Times of Malta, declining to specify further.

Petitioners led by Releaf’s Bonello now want lawmakers to fix this legislative anomaly by explicitly excluding all CBD products, including flowers, leaves and resin, from the scope of criminal prosecution. 

Their petition, which runs until mid-July, asks MPs to publish a legal notice “to clarify the legal status” of CBD products in all forms, and to start a public discussion about business and agricultural opportunities concerning CBD and hemp products. 

Petitioners also refer to classifying CBD as a ‘novel food’, something the European Commission is in the process of doing after Europe’s highest court, the European Court of Justice, ruled in 2020 that CBD should not be considered a narcotic drug.  

The ECJ concluded that CBD, “does not appear to have any psychotropic effect or any harmful effect on human health”.

That landmark ruling has already been cited in Spanish courts, in a case that bears many similarities to that of Agius.  In July 2021, a court in Valencia acquitted a shop owner of drug-related charges after police arrested him for possessing CBD flowers and CBD resin. 

The flowers and resin in question contained less than 0.3% THC – the upper limit permitted in EU law, and which is higher than Malta’s more stringent 0.2% threshold. 

Police do not comment on ongoing cases and the attorney general’s office does not explain its decisions, making it hard to understand with certainty why they are pushing for CBD flowers and resin to be classified as a narcotic.

Part of the reason may be that there is no way of visually distinguishing CBD cannabis from its THC (and narcotic) equivalent, making it much harder for police officers or customs officials to distinguish between the two.

That was the argument the French government made when it sought to maintain a ban on the sale of CBD flowers and resin following the ECJ ruling. But in January of this year, the country’s highest administrative court dismissed that reasoning and told the government to stop banning such products. 

Prime Minister Robert Abela is on record saying that he wants authorities "including the police" to "not only understand the law but also the spirit of the law.” 

A spokesperson for reforms junior minister Rebecca Buttigieg spoke in the same vein when quizzed about the new petition by Times of Malta.

She said the government is working with the Authority for the Regulation of Cannabis to “ensure that the spirit of the law is upheld”. 

“The historic amendments enacted in 2021 stipulate that products containing CBD with THC levels of not more than 0.2% are allowed by law. Therefore, the government together with the Authority for the Regulation of Cannabis are constantly working to ensure that the spirit of the law is upheld,” the spokesperson said.  

Meanwhile, local cannabis proponents say they have been left flustered, confused and frightened by the recent developments. 

“The trauma of being arrested by the police, and in some cases having all personal belongings confiscated and finances frozen until further investigations are carried out, is a cruel and unsustainable way how to address the well-being of society,” Bonello said. 

“It clearly reflects a disjointed approach between what the law aims to achieve and realities on the ground.”