Spain’s Supreme Court reinstated a conviction on 23 April 2026 against Rafael Fernández de Noreña, who ran one of the country’s first companies for CBD products. The ruling means one year and two months in prison plus an 8,000 euro fine. The company closed long ago, but according to the industry the judgment is already being cited by prosecutors in new cases against traders in hemp flowers.
The ruling quashed the acquittal from 2023
Rafael Fernández de Noreña was the administrator of Sensitive CBD in Barcelona, which sold flowers and other products containing cannabidiol, CBD. He was in Prague, where he had found work in the cannabis industry, when he received news of the judgment.
Behind it lie several years of litigation. On 31 January 2023, criminal court number 18 in Barcelona sentenced him to one year and two months in prison and an 8,000 euro fine. The defence appealed, and on 2 May that year the sixth section of the provincial court acquitted him. The public prosecutor’s office then took the case to the Supreme Court, which almost three years later sided with the prosecution: the acquittal was quashed and the original sentence restored. This is the judgment known as 301/2026.
The judgment records that he has no previous convictions. In Spain, suspended sentences are not automatic, and at the time of publication it was not possible to confirm whether any court had granted a suspension. His own concern was mainly the fine and how to fund a continued defence.
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Shipments to France started the case
The case began on 15 December 2020, when two consignments from Sensitive bound for France were intercepted in Barcelona. The parcels contained widely different products: cosmetics, infusions and teas, cigarettes and cigarillos, as well as buds and bags of plant material. In part of the samples, the analyses found THC levels of between 0.3 and 0.7 per cent.
The court treated the products differently. Trade in cannabis plant preparations was held to be unlawful, while the analysed infusions and cosmetics were excluded from that classification.
The company describes the consignment as an ordinary transaction with a French distributor who supplied other retail outlets: there were invoices, identified suppliers and a known customer. Its argument is that the business operated entirely openly, with registered companies and names and faces on display. For those who built the Spanish CBD market, open sales, documented purchases and laboratory analyses were ways of showing that the business was legitimate.
The verdict, however, did not turn on the transparency of the transaction, but on whether these plant products with CBD and low THC levels should be treated as narcotics under criminal law.
Why the court found it to be a crime
The provincial court that acquitted in 2023 did not consider sufficient psychoactivity to be proven. Among what it weighed were expert reports and a psychoactivity index, a calculation relating the levels of THC, CBD and CBN to one another, used to distinguish different profiles of the plant.
The prosecution questioned that interpretation and asked the Supreme Court to review how the law had been applied. The court started from the same proven facts but reached a different conclusion: the marketing of the products in question was held to fall under article 368 of the criminal code, which punishes drug trafficking and other conduct that facilitates the unlawful use of drugs by third parties.
The Supreme Court weighed several circumstances together: it concerned plant cannabis containing THC, the products were prepared for commercialisation and consumption, and the total amount of THC far exceeded the 10 milligrammes that Spanish case law uses as a reference for the minimum psychoactive dose. The court also rejected the idea that the psychoactivity index used by the provincial court could on its own decide whether an offence existed.
The judgment distinguishes CBD as a substance from plant preparations that also contain THC. The conviction concerns the marketing of the latter under the circumstances examined in the Sensitive case.
The pioneer who was backed by his competitors
Sensitive started in 2018, when selling CBD flowers was still a novelty in Spain. The company describes itself as the first to put the flowers in glass jars in its shop window and wait for the police. It was convinced the sales were lawful, but also expected that the question would eventually be tested.
By the time the judgment came, the business had already ceased trading. Over roughly eight years, Rafael Fernández de Noreña estimates that the company lost around 200,000 euros on seized goods, orders that had to be reshipped to keep customers, lawyers and other proceedings. The figure is his own estimate and covers accumulated costs before the April 2026 judgment.
After the ruling, other entrepreneurs in the industry began getting in touch with offers of lawyers and financial support, among them Héctor Brotons, a lawyer specialising in cannabis cases. A fundraiser among companies was organised and a team with experience of constitutional litigation was assembled. The support continued with meetings to follow developments, and many of those who contributed were still selling the very products whose legal status had been tested in the case.
The industry is also responding through AECANI, the Spanish association for industrial hemp, which brings operators together and works on dialogue with the authorities. The association commissioned a report written by a professor of EU law and constitutional guarantees, available to members, to give lawyers tools to bring the European arguments into ongoing proceedings.
The percentage that is misunderstood
One of the most widespread misunderstandings concerns THC levels. For years, 0.2 per cent and later 0.3 per cent circulated as a quick answer to when a CBD flower is legal. But those thresholds come from rules on hemp cultivation, not from rules on selling a finished product.
The EU’s current agricultural policy permits a maximum of 0.3 per cent THC for eligibility for certain cultivation support and requires certified seed of approved varieties. Meeting that agricultural requirement is not the same as holding a general authorisation to sell any product with that level. The industry uses the percentage as a widespread reference in the absence of specific rules, but it is not an automatic line between permitted and prohibited.
Another objection to the judgment concerns the difference between the THC level in a flower and the total amount of THC in a consignment. One gram of plant material with 0.3 per cent THC contains about 3 milligrammes of THC. A hundred grams of the same material contains 300 milligrammes. The concentration is unchanged, but the quantity has grown — which explains how a commercial consignment can exceed 10 milligrammes even when each gram contains little THC.
Rafael Fernández de Noreña rejects the calculation: no consumer will use every product in a shipment at once. The Supreme Court instead looks at a quantity of cannabis intended to circulate between parties, and therefore weighs the total THC amount together with the composition, presentation and commercial destination of the products.
The lawyer Marta de Luxán Marco, of the firm De Luxán & Nieto Abogadas, which works on cases in the CBD sector, considers that the way the reference is applied leaves companies selling flowers strongly exposed to criminal charges. She also describes the judgment as not creating binding precedent but carrying enormous weight: most judges will not go against what the Supreme Court has already said.
EU judgments give the sector hope
The industry’s hopes rest heavily on EU law. The starting point is that Spanish companies buy products manufactured lawfully in other member states, and that the rules of the internal market should also protect their sale in Spain.
The central precedent is Kanavape. On 19 November 2020, the Court of Justice of the European Union ruled on CBD produced lawfully in Czechia, extracted from the whole plant and marketed in France. It held that the CBD examined should not be considered a narcotic and that its sale was protected by the rules on the free movement of goods. That protection allows restrictions on public health grounds, but the state must establish the risk and show that the measure is appropriate and proportionate — a more restrictive sales regime cannot be justified on hypothetical risks alone.
Spain’s Supreme Court took Kanavape into account but held that it did not resolve the Sensitive case, since that concerned the sale of plant cannabis containing THC. Those interviewed question that distinction and argue that the European principles should also apply when assessing hemp flowers produced lawfully in other EU countries.
France offers another precedent, dealing specifically with flowers and leaves. On 29 December 2022, the Conseil d’État, France’s highest administrative court, annulled a general ban on selling such products from approved varieties with up to 0.3 per cent THC. The court found that no health risk had been shown that justified an absolute ban, and attached weight to the amounts actually consumed and the manner of consumption. The decision does not bind Spanish judges, but it shows that the question of flowers can receive a different answer even when framed in terms of public health.
For the question to reach the EU court, a Spanish court must request a preliminary ruling on how EU law should be interpreted. The defence can ask the court to do so. Another route is a constitutional complaint (recurso de amparo) to Spain’s Constitutional Court, used to report violations of fundamental rights. The requirements for such a case to be admitted are strict, and filing one does not automatically suspend the sentence.
Registers and clear rules are being called for
CBD Side and Cannactiva continue trading. According to Albert Mayol, founder and CEO of CBD Side, the company operates as usual with legal advice; purchases are made within the EU with invoices and certificates of analysis, and labels and product characteristics are reviewed. Such care does not remove the risk that a court will consider the activity criminal. Cannactiva’s founder, Isidre Carballido Enrich, says nothing has changed in the catalogue.
According to lawyers in the sector, some prosecutors are already citing judgment 301/2026 to bring charges against hemp flower traders. No consolidated figures exist yet, because industry associations are still collecting the cases. Isidre Carballido Enrich stresses at the same time that a Supreme Court judgment neither closes the debate nor convicts anyone in advance.
AECANI is calling for registers of operators and clear conditions for selling the products. According to the association, that would improve traceability — the ability to follow a product’s origin and path — and make it easier to distinguish those who meet certain standards from those who exploit the lack of controls. One of its concerns is that synthetic intoxicating cannabinoids are sold under the CBD shop label.
Uncertainty holds back investment
A criminal case can run for years. In the meantime, a shop must pay rent, wages, taxes and suppliers, on top of the costs of its defence. The chance of reaching a favourable judgment therefore also depends on being able to see the process through.
Legal uncertainty affects concrete decisions: how much to invest, which risks to take and how long one can keep working without a clear answer. It can also determine which companies keep their place in the market and which withdraw before the discussion is settled.
Albert Mayol describes it as passing through a storm in the knowledge that there is land on the other side. He says he still believes in the sector and argues that Spain has an important opportunity in the cultivation of hemp and non-psychoactive cannabis, while also noting that legal insecurity currently limits growth. Isidre Carballido Enrich would rather see the solution come from politics than from the courts, since regulation by judgment always leaves gaps open.
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