Malta’s legal “grey area” sees consumers criminalised over CBD flower

As the first EU country to legalise adult-use cannabis, Malta is looked on as a frontrunner of European reform, but consumers are still being prosecuted for importing CBD flower due to a legal “grey area”.

In February 2022, a Maltese doctor was arrested for drug trafficking. His clinic and home were raided by police, his money and possessions seized, along with all of the CBD flower which he was recommending to patients.

He was locked up overnight, strip-searched, interrogated and eventually charged with the importation and trafficking of dangerous narcotics. 

The case came as a shock, given that just months earlier, the government had become the first in Europe to formally legalise adult-use cannabis. 

Under the Cannabis Reform Act, introduced in December 2021, consumers are permitted to carry up to 7g in public and grow four plants at home, without risk of prosecution. This law also allows importation and sales of cannabinoid products with less than 0.2% THC, and CBD products are now available for sale from several shops around the island. 

But despite the law change, experts say CBD flower with less than 0.2% THC continues to exist in a legislative “grey area”, which has seen many risking arrest—sometimes unwittingly— and facing a maximum sentence of life imprisonment. 

“When the law was introduced in 2021, it stated that cannabinoid products below 0.2% THC are not what the law defines as cannabis,” explains Andrew Bonello, president of the advocacy group, Releaf.

“Cannabis is controlled through the social clubs, laws on possession and home growing, but anything below 0.2% THC didn’t fall into that. This led me to believe that these products were going to be legal, but the Attorney General interpreted it in a different way.”

Following the doctor’s arrest, Releaf was contacted by others in similar situations. A grandfather was arrested for ordering 4g of CBD flower from a Swiss website, while a Spanish nursing student’s room was raided and her photo published in local media after she bought some online to be delivered to her hotel.

“Unfortunately cases of individuals caught in possession of large quantities of CBD flowers are quite common these days,” says Alexander Scerri Herrera, a Maltese lawyer.

“The problem seems to arise from the fact that according to the public prosecutors ‘cannabinoid product’ refers to products which derive from the cannabis plant and do not include the plant itself or parts thereof. For such purposes they are permitting vapes, foods or other variants of CBD products but are restricting ‘buds and leaves’.”

He adds: “Importation of any drug under Maltese law can be subject to the punishment of life imprisonment however to date no such punishment has ever been meted out. It seems that the police are not prosecuting in cases where the amount found is minimal and indicative of personal use, however they are prosecuting quite regularly in relation to cases dealing with hundreds or thousands of grams.”

Limiting options for effective relief 

In contrast, Malta’s first legal cannabis associations were established earlier this year, through which cannabis can be grown for adult-use under a non-profit model. But while some associations do sell CBD flower to members, there is little demand for this in a recreational market. 

Local sources say medical wholesalers find it harder to source CBD flower and Malta’s Medicines Authority states that CBD products with less 0.2% THC do not qualify as medicines. 

There is currently only one product containing CBD available on prescription — an oil which contains balanced amounts of CBD and THC— while all available flower products contain levels of THC between 18-25% and less than 1% CBD.

As a result, patients relying on CBD for medicinal purposes have to turn either to oil and vape pens which are “not economically viable”, or to “specialised” shops which sell CBD flower as “souvenirs”, with no certificate of analysis or proof of quality.

“I’ve had to resort to using the oil – which is extortionately priced, making it hard to buy regularly,” says Leyla, a patient who lives with severe chronic pain as a result of fractures she obtained in a road traffic accident 18 years ago.

“CBD flower in Malta is now available from certain specialised shops – however they are sold as a non-ingestible ‘souvenir’ most of the time, which makes it unsafe to consume because you really don’t know if it’s the real thing.”

Clinicians are also concerned that not being able to access high quality CBD products may be limiting the therapeutic effects patients experience from medicinal cannabis.

Dr Madeleine Bonnici, a prescriber of cannabis medicines in Malta, says: “When patients are unable to access CBD flower, it limits their options for finding effective relief without unwanted intoxicating THC effects. This can be frustrating and negatively impact their overall treatment and quality of life.”

Not only does CBD have specific properties which may be beneficial for medicinal purposes, studies have shown that it can also help counteract some of the unwanted side-effects of THC.

“CBD flower can help mitigate the unwanted effects of THC due to its ability to modulate the psychoactive properties of THC,” Dr Bonnici continues.

“By balancing the cannabinoid profile, CBD can counteract the anxiety, paranoia, and cognitive impairment sometimes associated with high-THC strains, leading to a more balanced and manageable experience for patients.”

She adds: “Providing patients access to the full spectrum of cannabis-derived products, including CBD flower, is crucial for the synergistic entourage effect. The entourage effect can allow for lower doses of THC to be effective, reducing the potential for adverse effects and increasing the therapeutic window for cannabis-based treatments.”

This has certainly been Leyla’s experience.

“Treatment with THC medical cannabis doesn’t mean much without the accompanying CBD flower,” she says. 

“CBD flower helps as a relaxant which is very important in my case. The THC element may reduce the pain and help minimise the pain over long periods of time, but it seems to me that CBD is what allows my body to fall into a place of ease and comfort while the THC does its job as a pain reliever.”

She adds: “Yes sure I have options like oil and vape pens – but these options are not economically viable or safe to use.”

‘Fighting the wrong war’

Meanwhile, semi-synthetic cannabinoids such as Hexahydrocannabinol or HHC, are becoming increasingly available from high street retailers despite a lack of regulation and very little understanding of the potential risks associated with it. 

“You can’t be arresting people for CBD whilst HHC and other products like these are freely available from vending machines, it doesn’t make sense,” says Bonello, who has started a petition and is pushing for a clarification in the law.

Lawyer Alexander Scerri Herrera has also provided the public prosecution office with reports issued by the World Health Organisation, as well as the European Court of Justice (CJEU) judgement delivered in the 2020 ‘KanaVape’ case, which indicate that CBD is not a narcotic and does not have psychoactive properties. 

However, so far these “seem to have been ignored”.

“The term Cannabinoid product needs to be defined or alternatively the definition of the word Cannabis needs to be amended,” adds Herrera. 

“Prior to the first judgement being pronounced by the court on this legal issue I do not foresee the matter being resolved purely by a legislative amendment.”

Over two years later, the doctor is still battling his case. Since December 2022, it has been on hold awaiting the prosecution to give his lawyers the go ahead to prove that the flower seized is a cannabinoid product with less than 0.2% THC and does not have narcotic properties.

Until then his assets remain frozen and he is “left in limbo”.

“It’s normal for court cases to go on for longer than five years, sometimes up to 10,” says Bonello.

“It’s devastating for people to not only go through the trauma of being arrested, strip-searched and having their houses raided, but also having to hire a lawyer which is going to cost them a lot of money.”

He adds: “It seems like the government is fighting the wrong war.”

Cannabis Health reached out to Malta’s Authority for the Responsible Use of Cannabis (ARUC) but did not receive a response to our requests for comment.