Light cannabis: Brescia Court refers the ban to the Constitutional Court

The Ordinary Court of Brescia, Second Criminal Section, acting in a single-judge composition, has referred to the Constitutional Court the ban on the possession, transfer, distribution, trade, and public sale of hemp inflorescences introduced by the 2025 security decree, even when such inflorescences and products are concretely devoid of intoxicating or psychotropic effects. Ordinance no. 135, decided on July 15, 2026, by Judge Tringali, is published in the Official Gazette of the Italian Republic, 1st Special Series – Constitutional Court, no. 37 of September 16, 2026 (code 26C00162). The criminal proceedings are suspended and the documents have been transmitted to the Consulta, with notification to the President of the Council of Ministers and communication to the Presidents of the Chamber of Deputies and the Senate.

The challenged rule

The judge doubts the constitutionality of Art. 18, paragraph 1, letter a), number 4), and letter b), number 3), of Decree-Law April 11, 2025, n. 48 (so-called security decree), converted without amendments by Law June 9, 2025, n. 80, as well as Arts. 1, paragraph 3-bis, and 2, paragraph 3-bis, of Law December 2, 2016, n. 242, as amended by the same Art. 18.

From the combined application of the two clauses, it follows that, as of April 12, 2025, hemp inflorescences of permitted varieties and products containing or consisting of them – including extracts, resins, and oils, even in semi-processed, dried, or shredded form – are subject to prohibited conduct and sanctioned under Title VIII of the Presidential Decree October 9, 1990, n. 309. The only exception is the processing of inflorescences for the agricultural production of seeds.

The case: twenty jars and an arrest in flagrante

The event dates back to December 11, 2025, during the full effectiveness of the new regulations. During checks on the marketing of hemp-derived products in “cannabis shop” type establishments, a total of 20 jars of inflorescences were seized (seven in one point of sale and thirteen in another), bearing various commercial names, including Sapphire Kush, Lemmi Dough, Platinum Panther, Bubble, Legendary, Black Rice, Mango, Lemon, Kush, Nocciola, and Rosetta.

Gas chromatographic analyses (GC-MS and GC-FID) from the Narcotics Analysis Laboratory of the provincial Carabinieri command, filed with report no. 181/0648-1-2025, established for 19 out of 20 samples – corresponding to almost the entire weight – an abundance of cannabidiol and non-quantifiable traces of Δ9-THC, a composition attributable to industrial hemp as per Law n. 242 of 2016. Only sample G2, approximately 7.3 grams of resinous substance, presented acetylated cannabinoids, some of which were listed and non-quantifiable with the available instrumentation.

The arrest in flagrante delicto was validated, but the judge rejected the prosecutor’s request for precautionary measures. The summary judgment was admitted for the hearing on January 30, 2026; at the discussion on July 15, 2026, the prosecutor requested an acquittal.

The invoked parameters

• Art. 77, second paragraph, Constitution: lack of the prerequisites of extraordinary necessity and urgency for the conversion into a decree-law of a bill already under examination by the Chambers.
• Artt. 3, 13, 25, second paragraph, and 27, third paragraph, Constitution: abstract offensiveness and unreasonableness of the absolute presumption of dangerousness, as well as the disproportion of the sanction.
• Artt. 2, 3 and 41, first and second paragraphs, Constitution: protection of legitimate expectation and freedom of economic initiative, due to the immediate elimination of a lawful sector without transitional regulations.
• Artt. 11 and 117, first paragraph, Constitution, in relation to artt. 34 and 36 of the Treaty on the Functioning of the European Union: restriction on the free movement of goods.

Precedents and key figures

• Court of Cassation, Criminal Joint Sections, May 30, 2019, no. 30475, Castignani: the commercialization of derivatives constitutes the crime referred to in art. 73 of Presidential Decree no. 309/1990, unless they are concretely devoid of any narcotic effect.
• Ministry of Agricultural Policies Circular no. 5059 of May 22, 2018, which had categorized inflorescences under floriculture.
• THC thresholds of 0.2% and 0.6% (art. 4, paragraphs 5 and 7, law no. 242/2016) and a limit of 0.3% in the common agricultural policy (EU regulations no. 1307/2013, no. 1308/2013 and no. 2021/2115).
• Court of Justice of the European Union, November 19, 2020, C-663/18, and October 4, 2024, C-793/22; Council of State, ordinances no. 8813 and no. 8839 of November 2025.
• Cited sanctions: art. 73, paragraph 4, Presidential Decree no. 309/1990 (imprisonment from two to six years and a fine from 5,164 to 77,468 euros) and paragraph 5 (from six months to five years and a fine from 1,032 to 10,329 euros).

What changes for the supply chain

The ban remains in force until the decision of the Constitutional Court. If the issue is accepted, the act would once again be judged according to the previous living law and, in light of the analytical results, the ruling could only be an acquittal for lack of proof of narcotic effect, with the return of the substance. In the event of a rejection, the typicality of the act would remain firm and the inflorescences would be subject to mandatory confiscation pursuant to art. 240, paragraph 2, number 2), of the criminal code, even in the event of acquittal. The decision therefore directly concerns growers, retailers, and consumers of light hemp.

Official source: Official Gazette of the Italian Republic, 1st Special Series – Constitutional Court, no. 37 of September 16, 2026, ordinance no. 135 of the Ordinary Court of Brescia, Second Criminal Section, of July 15, 2026 (code 26C00162).