Insights / 01-02-2022

France

 
Marie Sanchez
Nooa Avocats

1) Psychoactive Substances legislation

In France, the term “psychoactive substances” is a general term that covers various types of substances and in particular, controlled and poisonous substances.

The following categories of substances are considered as controlled and poisonous substances under French law (Article L. 5132-1 of the French Public Health Code):

• Narcotic substances (Listed in Arrêté of February 22nd, 1990 on narcotic substances);
• Psychotropic substances (Listed in Arrêté of February 22nd, 1990 on psychotropic substances);
• Other substances listed on List I and List II of controlled substances as defined by Article L. 5132- 6 of the French Public Health Code

According to French regulations, the term “substances” means the chemical compounds and elements as they are in their natural state or as they are industrially produced and that contain any additive necessary to place them on the market, as the case may be.

Article R5132-74 of the French Public Health Code sets out that unless expressly authorized, the production, manufacture, transport, import, export, possession, offer, transfer, acquisition or use and, in general, agricultural, artisanal, commercial and industrial operations relating to substances or preparations and plants or parts of plants classified as narcotic, are prohibited.

Notwithstanding, French law sets out that a specific authorization may be granted by the French competent health authority  - the National Agency for the Safety of Medicines and Health Products (ANSM) - for instance for clinical research or research & development purposes (Article R. 5132-75 of the French Public Health Code). Such authorization would be delivered on a case by case basis, to pharmaceutical companies established on the French territory.

The same prohibition will apply to psychotropic substances (Articles R. 5132-88 and seq. of the French Public Health Code). Sanctions related to any infringement of the abovementioned prohibitions are set out in the French criminal code and vary depending on the type of offense committed (drug trafficking, drug use…) (Articles 222-34 and seq. of the French criminal code).

2) Analogue Compounds Legislation

There is no strict equivalent regulation to the US Federal Analogue Act in France. Under French law, criminal law is interpreted restrictively, i.e. a specific offense or product must be expressly prohibited by law.

Nevertheless, in order to prevent the placing on the market of what is considered “New Psychoactive Substances”, “Research Chemicals” or “Designer Drugs”, which have similar effects to those of prohibited substances such as ecstasy/MDMA, cocaine, heroin…, French law uses a generic classification of prohibited substance categories rather than a specific substance list approach.

Hence, the French Arretés of February 22nd, 1990 (as amended), on both narcotic substances and psychotropic substances, set out a classification of any and all substances derived from certain compounds, and list some substances/products specifically, but leave room for any other substances that may not be namely listed yet, but would have a similar chemical structure.

In conclusion, a specific substance may not be namely listed in the applicable regulation, but may fall under the scope of “any derivative from X substance or compound”, in which case, said substance would be considered as a narcotic (or a psychotropic substance depending on the substance), and hence, be prohibited.

In practice, there could be 2 situations that arise:

1. The analogue compound is categorised: falling under one of the wide categories of substances and molecules already listed in the Arrêté on narcotic products, becoming hence prohibited; or
2. The analogue compound is not categorised: not falling under one of the categories (due for instance to a specific designer structure that allows to circumvent the existing prohibition). In that case, the product would not be prohibited per se at the time of its placing on the market.

Nevertheless, these analogue compounds are psychoactive substances and, as such, are highly controlled and generally stopped by customs or law enforcement, and classified as narcotic or psychotropic substances, as the case may be, shortly after reaching the French market. Once a substance is officially classified as a narcotic, any related activity from production, import, sale to possession and use, would fall under the scope of the laws on drug trafficking.