Article 18 of the Security Bill: what it provides and why it does not automatically ban the sale of legal cannabis

What Article 18 of the Security Bill Provides

Article 18 was included in the Draft Law (later decree-law) “Security Bill”, with the declared intent of limiting the circulation of hemp flowers (even if derived from “legal” varieties) and their derivatives, when such products — according to the legislator — may have a psychophysical effect that endangers public or road safety.

In particular, the text states that amendments are introduced to Law 2 December 2016, no. 242 (the law that regulated industrial hemp) with the addition of a “3-bis” paragraph which establishes:

• that certain activities relating to hemp flowers (even dried, shredded, semi-processed) or containing such flowers — for example import, processing, possession, transfer, trade, transport, shipping, delivery, retail sale, consumption — are no longer covered by Law 242/2016.  
• that, for such activities, the provisions of the Consolidated Law on Narcotics (DPR 309/1990) apply.  
• that the processing of flowers remains permitted exclusively for the agricultural production of seeds.  

Therefore, formally, Article 18 intervenes by amending Law 242/16 to exclude flowers from the “industrial hemp” regime and to adjust the penalties for the latter.

Critical Issues and Controversies

1. Conflict with European Legislation and TRIS Procedure

One of the major points of debate is that Art. 18 imposes technical restrictions/regulations that affect the internal market, but it does not appear that the Government has notified the rule to the European Commission according to the procedure provided by Directive 2015/1535 (TRIS procedure).

According to industry associations, this would make the rule unenforceable against citizens and businesses, by virtue of the principle of the primacy of European law (i.e.: a national regulation that does not comply with European procedures cannot be enforced).

2. Regulatory No Man’s Land — Legal Uncertainty

• Industry businesses argue that Art. 18 creates a regulatory vacuum: on the one hand, Law 242/16 loses effectiveness for flowers, on the other, it is not clear whether all legal flowers (low THC) automatically fall under narcotics regulations.  
• Some local authorities and law enforcement agencies, in the absence of precise guidelines, may interpret restrictively and proceed with seizures even when the product complies with legal limits.  
• Associations report that many operators have already suffered seizures or disputes, even if review or non-application procedures have subsequently been initiated.  

3. Conflict with the Purposes of Law 242/16

Law 242/16 aimed to promote the industrial hemp supply chain: cultivation, processing, uses not related to psychotropic effects. Article 18, by extending the ban to flowers (even legal ones), risks wiping out much of the practical applications in the “legal hemp” field.

In parliamentary hearings and technical documents, industry operators and agricultural associations have pointed out that the new regime risks affecting investments, business projects, and the very credibility of the sector.

Why Some Argue that Article 18

does not explicitly ban

 sales in every case

Despite the apparent severity of the text, some interpret Article 18 in a non-absolute way, stating that it does not establish an insurmountable total ban on the sale of flowers in every circumstance. The main reasons:

1. Limited Application to Products with Potential Psychotropic Effect
   The text provides that the intervention is justified “in order to prevent the consumption of products ... from favoring ... alterations of the psychophysical state ... behaviors that expose public safety or health to risk.”
   This theoretically leaves room for the argument that, if a hemp flower is verified by analysis as free of any intoxicating effect, it would not fall within the scope of the ban.
2. Unnotified Rule / Mandatory Non-application
   It can be argued that, until the rule is notified and approved according to the TRIS procedure, it cannot legitimately be enforced against businesses operating in compliance with European law. In this sense, judges and law enforcement could disregard Article 18 in concrete cases.  
3. Existing Case Law on the Limits of “Harmfulness”
   The Supreme Court, in previous decisions, has specified that the mere presence of a potentially psychotropic substance is not sufficient, but the actual ability to produce narcotic effects must be assessed. If a flower is shown by laboratory evidence to be free of intoxicating effect, criminal relevance can be excluded.  
4. Principle Rule vs. Concrete Implementation
   There is the argument that Article 18 establishes a “normative principle”, which requires implementing regulations, ministerial guidelines, detailed rules, in order to be fully applied. Until then, its full application would not be immediate. Some associations argue that no clear implementing regulation has been prepared, thus leaving room for interpretation and protection for those operating in compliance with European law.  
5. Distinction between “flowers” and other derivatives not containing active ingredient
   Article 18 focuses on “products consisting of hemp flowers or containing such flowers, including extracts, resins, and oils derived from them.”
   It can be argued that derivative products, in which the flowering parts are deactivated, purified, isolated, or characterized so as not to contain active ingredients, could fall outside the restrictive scope, if adequately demonstrated.

Conclusion: What Legal Scenario for Sales?

Article 18 introduces a restrictive regime for hemp flowers, which risks excluding them from the “legal” market as it has been understood so far in the context of light hemp / legal CBD. However, its full effectiveness is subject to strong doubts:

• the lack of TRIS notification may make the ban unenforceable in practice against businesses compliant with European law
• Art. 18 does not formulate a categorical ban for any flower: it leaves room for interpretations, technical assessments (e.g. THC analysis), and residual areas
• the current still uncertain framework and lack of implementing regulation makes any automatic application of the ban questionable

In summary: Article 18 could severely restrict the sale of hemp flowers, but it is not (at least at present) a rule that a priori prevents in every situation the marketing of products that are duly certified, free of intoxicating effect, and compliant with European regulations. Well-documented businesses can assert arguments of non-application and use legal tools to protect themselves in the evolving legal context.