HHC ban - what's next?

16.2.2024

On 14 February 2024, the Government of the Czech Republic approved an amendment to Regulation No. 463/2013 Coll., on the lists of addictive substances (hereinafter referred to as the "Regulation"), which will add the substances Hexahydrocannabinol (HHC), Hexahydrocannabinol-O-acetate (HHC-O) and Tetrahydrocannabinol (THCP) to the list of addictive substances, specifically to List No. 4 of psychotropic substances.

(pictured is the ARROWS technical cannabis team)

The Government's decision has yet to be approved by the European Commission under the notification procedure. Legislation must always be submitted to the European Commission for notification if the legislation is intended to affect in some way the internal market of the European Union, in which the free movement of goods, persons, services and capital is ensured, and to create certain barriers to trade. However, the European Commission is expected to approve the decision in the coming days.

The amendment to the Regulation is not due to come into force until 1 March 2024 at the earliest, depending on when the European Commission's approval is given.

The amendment to the Regulation is to have only a limited validity until 1 January 2025. The limited validity of the ban is related to the law on psychomodulatory substances, which is currently being discussed in the legislative process. This law would regulate the management of so-called psychomodulants, which is likely to include HHC.

Thus, the ban on HHC and other substances is to apply from 1 March 2024 to 1 January 2025 at the earliest. However, in the absence of a law on psychomodulants, the ban may last even longer.

What are the implications of the ban?

As these substances will be considered as addictive substances or psychotropic substances under the amended Regulation, it will no longer be possible to freely handle these substances (legally).

Handling of addictive substances within the meaning of the Act on Addictive Substances means the purchase and sale of addictive substances and preparations, as well as the acquisition and disposal of other rights in rem or obligation related to them, the brokering of such contracts and representation in their conclusion.

According to Act No. 167/1998 Coll., on Addictive Substances and on Amendments to Certain Other Acts (hereinafter referred to as the 'Addictive Substances Act'), addictive substances listed in Annex 3 or 4 to the Regulation and preparations containing them may be used only for limited research, scientific and very limited therapeutic purposes as defined in the handling licence. Other addictive substances and preparations containing them may be used only for therapeutic, scientific, educational, veterinary or other purposes, subject to authorisation by the Ministry of Health.

This means that once the amended Regulation comes into force, it will not be legal to sell, distribute, purchase or possess these substances and goods containing them for personal use. Handling of these substances will only be possible under a handling permit and only for the purposes mentioned above.

The same applies according to Article 5 of Decree No. 58/2018 Coll. on food supplements and food composition, according to which narcotic and psychotropic substances within the meaning of the Act on Addictive Substances may not be added to food. Therefore, it will not be possible to sell food ('edibles') containing the above substances. It is in the form of 'edibles' (candies, cookies, etc.) that HHC was very often sold.

Businesses and consumers should therefore get rid of these substances and products containing them and dispose of them, otherwise they may expose themselves to misdemeanour and criminal liability.

Entrepreneurs who continue to manufacture, distribute, import, export, etc. such products would be criminally liable under the provisions of Section 283 of Act No. 40/2009 Coll., the Criminal Code (hereinafter referred to as "the CC"), and could therefore be guilty of the criminal offence of Illicit Manufacturing and Other Disposal of Narcotic Drugs, Psychotropic Substances and Poisons.

Consumers would then be criminally liable in the case of possession of such substances in quantities greater than small pursuant to Article 284(2) of the Criminal Code. If a person possesses a substance in a quantity less than this, he or she may be liable for an offence.

Psychomodulant Substances Act

As mentioned above, the Psychomodulant Substances Act is currently under legislative consideration. The Psychomodulants Bill is expected to be discussed by the Health Committee shortly and subsequently move to 2nd and 3rd reading. The enactment of this Bill should be linked to the effectiveness of the amended Regulation.

Under the current wording of the Psychomodulants Act, psychomodulants are to be placed on the market under the following conditions:

- In unit packs, so that the quantities in the pack and the concentrations of the active substances are limited;

- They must not contain foreign substances (chemical and microbiological limits);

- Be labelled in such a way that the consumer receives all relevant information, including health and safety warnings

- Sales should only be allowed in specialised outlets dedicated to the sale of these substances and related products;

- Sales to minors should be prohibited;

- Sales through vending machines should be prohibited;

- In the case of distance selling, the seller will be obliged to verify the age of the buyer (similar to alcohol and tobacco);

- Cross-border sales of substances through distance selling to be prohibited;

- Exports should only be possible under a licensing regime;

- It is also envisaged to introduce an excise duty on these substances, which will be a revenue for the state budget.

The Psychomodulants Act is still undergoing the legislative process and it is possible that some changes will still be made.

The effectiveness of the amendment to the Regulation, which will ban HHC and other substances, is subject to both the approval of the European Commission and the adoption of the Psychomodulants Act. At this point in time, it is the adoption of the psychomodulation law that is considered absolutely crucial in order to achieve regulation in this area, rather than absolute prohibition.