Cannabis Light: legalità della vendita di infiorescenze e limiti di THC. La Circolare del Ministero delle Politiche Agricole e quella del Ministero dell’Interno.

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Oggi parleremo, facendo seguito al precedente articolo, della Cannabis Light e della questione della legalità della vendita di infiorescenze.

Parleremo anche dei limiti di THC, analizzando le Circolari dei Ministeri intervenute nel tempo.

La Circolare del Ministero delle Politiche Agricole del 23 Maggio 2018

Come accennato nel precedente articolo, il Ministero delle Politiche Agricole, con Circolare n. 5059 del 23 Maggio 2018, è intervenuto sulla vendita delle infiorescenze in quanto non espressamente indicate dalla L. 242/2016.

Vi è comunque da ricordare che la legalità della commercializzazione deriva dalla normativa europea che, all'art. 17 della Direttiva 2002/53/CE esplicita che non esiste alcuna restrizione di commercializzazione per i materiali di moltiplicazione.

Appare indubbio, infatti, che le infiorescenze siano, appunto, materiali di moltiplicazione della canapa.

Si ritiene inoltre che anche la L. 242/2016, pur non prevedendola esplicitamente, ne consenta la produzione e la vendita, trattandosi, appunto, di materiali di riproduzione della pianta.

Del resto, il contenuto di THC si rinviene soprattutto nelle infiorescenze e non avrebbe dunque senso prevederne dei limiti (art. 4) se non fosse consentita la vendita.

In ogni caso, con la Circolare, il Ministero ha specificato che le infiorescenze rientrano nell’ambito dell’articolo 2, comma 2, lettera g), rubricato, “Liceità della coltivazione”, ossia nell’ambito delle coltivazioni destinate al florovivaismo.

La situazione rimane comunque incerta, in quanto pur essendo lecita la vendita non si capisce la reale destinazione d'uso della "Cannabis Light".

Vi è da considerare il parere negativo alla vendita in genere di prodotti a base di THC dato dal Consiglio Superiore della Sanità nella seduta del 10 Aprile 2018. che, pur se smentito dal Ministero, in modo anacronistico ne ha sconsigliato la vendita.

Considerazioni

A seguito di tale specificazione da parte del Ministero, la legalità della vendita delle infiorescenze e della Cannabis Light è esplicita.

Tali prodotti debbono derivare da una delle varietà ammesse, iscritte nel Catalogo comune delle varietà delle specie di piante agricole, il cui contenuto complessivo di THC della coltivazione non superi i livelli stabiliti dalla normativa.

Infine, il prodotto non deve contenere sostanze dichiarate dannose per la salute dalle Istituzioni competenti.

La Circolare del Ministero dell'Interno del 31 Luglio 2018

Nel precedente articolo abbiamo anche accennato della Circolare del Ministero dell'Interno del 31 Luglio 2018.

Con tale Circolare, il Ministro ha infatti indicato le modalità operative che le Forze dovrebbero rispettare nei confronti della vendita delle infiorescenze.

Riferendosi a varie attività investigative e sequestri effettuati nel tempo ma, soprattutto, ad una interpretazione a dir poco "personale" della L. 242/2016 - riterrebbe vietato l'utilizzo delle inforescenze e, dunque, la vendita.

Secondo la "personale" interpretazione del Ministero, l'esimente del limite di THC superiore allo 0,2 % ma nei limiti dello 0,6 % per l'Agricoltore non si estenderebbe al venditore che, così, non potrebbe porre in vendita le infiorescenze.

Sulla base di questa - quantomeno dubbia - interpretazione, il Ministro arbitrariamente ha deciso che le infiorescenze con THC superiore allo 0,5 %, pur se nei limiti dello 0,6 %, rientrerebbero nell'ambito del D.P.R. 309/1990 e dovrebbero essere considerate sostanze stupefacenti.

Ciò ha portato ad una serie di sequestri del prodotto del tutto arbitrari che, in vari casi, hanno portato addirittura alla sospensione della licenza delle attività.

Considerazioni

Vi è da dire che, come già affermato nel precedente articolo, tale interpretazione è da considerarsi del tutto errata.

Innanzitutto non si capisce come si giunga alla conclusione che l'esimente del limite di THC allo 0,6 %, applicabile all'Agricoltore non sia applicabile anche al commerciante.

Poichè non è previsto sequestro o distruzione della merce dovrebbe essere chiaro che la stessa possa essere comunque commercializzata.

Secondariamente, non si capisce per quale ragione, se la L. 242/2016 consente la produzione e la commercializzazione dei prodotti di moltiplicazione della pianta di canapa, le infiorescenze non potrebbero essere vendute.

Anche in questo caso, basti considerare che il Ministero dell'Agricoltura, con la Circolare già citata, ne ha espressamente sancito la legittimità.

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