Medicinal Plants in Capsules: Why Sale is Restricted to Pharmacists

Imagine you are the owner of a shop in Saint-Vincent-de-Tyrosse, in the Landes department. You sell natural products, including medicinal plants packaged in capsules. One day, an inspector from the Departmental Directorate for Population Protection (DDPP) confronts you: "Sir, you do not have the right to sell these capsules!" You are perplexed. These plants are natural, require no prescription, and you have been offering them for months without any apparent issues. But what does the law actually say?

This situation, although fictional, reflects a legal reality that is often little-known. Every shop owner, every seller of natural products, may find themselves facing this question: do I have the right to sell medicinal plants in capsule form? The answer is not as simple as it seems, as it touches on a historical monopoly (exclusive reservation of an activity): that of pharmacists.

A decision of the Constitutional Council (the highest French court on matters of constitutionality of laws), delivered on 11 December 1996, provides essential clarifications. It recalls that, except for exceptions, the sale of medicinal plants listed in the pharmacopoeia (official list of medicines and medicinal substances) is reserved for pharmacists. But beware: this rule has derogations (exceptions), and that is precisely where things become complicated. How to distinguish what is permitted from what is not? This is what we will break down together, with concrete examples rooted in the jurisdiction of Mont-de-Marsan, from Parentis-en-Born to Saint-Vincent-de-Tyrosse.

The Facts: A Story as Common as Any Day

Take the example of Mr. Dupont, owner of a herbalist shop in Parentis-en-Born. Passionate about plants since forever, he turned his passion into a business. In his shop, he offers various medicinal plants: some sold in bulk, like chamomile or mint, and others packaged in capsules, like ginseng reduced to powder. Mr. Dupont thinks he is doing well: he informs his customers about the virtues of the plants, he respects hygiene rules, and his products are of good quality.

But one day, the company "Plantes médicinales Christian", a competitor, files a complaint against him. This company, which itself sells medicinal plants, accuses Mr. Dupont of violating the pharmacists' monopoly by marketing capsules of medicinal plants. The case goes all the way to the Constitutional Council, seized on the conformity of certain legal provisions. The stakes are high: it is about determining whether Mr. Dupont, as a simple trader, can sell medicinal plants in capsule form, or whether this activity is strictly reserved for pharmacists.

The dispute (legal disagreement) revolves around a decree (regulatory text issued by the government) of 15 June 1979. This decree establishes a list of medicinal plants that can be sold outside pharmacies, provided they are sold "in their natural state". Mr. Dupont argues that his capsules fall into this category, as they simply contain plants reduced to powder. The company "Plantes médicinales Christian", on the other hand, maintains that packaging plants in capsules constitutes a transformation that falls outside the scope of sale "in their natural state", and therefore, this sale falls under the pharmacists' monopoly. The judicial trajectory is classic: after exchanges between the parties, the case is brought before the competent courts, with twists and turns on the interpretation of the law. Finally, the Constitutional Council is seized to decide this question of principle.

The Court's Reasoning — Broken Down

The judges of the Constitutional Council analysed the situation with precision. Their reasoning is based on Article L. 512.5° of the Public Health Code, which provides that "the sale of medicinal plants listed in the pharmacopoeia is reserved for pharmacists". In other words, this law establishes a monopoly: only pharmacists can sell these plants, unless a derogation is provided. In other words, by default, you cannot sell these plants if you are not a pharmacist.

But there is a derogation, introduced by the decree of 15 June 1979. This decree allows the sale of certain listed medicinal plants outside pharmacies, provided they are sold "in their natural state". What does this mean? "In their natural state" means that the plant is sold as is, without substantial transformation. For example, selling dried mint leaves in bulk is selling them in their natural state. On the other hand, if you reduce these leaves to powder and put them in capsules, you transform them: they are no longer "in their natural state".

The Constitutional Council confirmed this interpretation. It held that the derogation of the 1979 decree is subject to (conditioned by) the sale of plants "in their natural state". Therefore, plants packaged in capsules after being reduced to powder are not sold in their natural state, and thus, their sale is not authorised outside pharmacies. This is a confirmation of prior case law (the body of court decisions), which protects the pharmacists' monopoly. Mr. Dupont's arguments, based on the idea that the powder would still be a natural state, were rejected: the transformation into capsules is considered a manufacturing step that falls outside the scope of simple sale.

What few people know is that this decision fits into a logic of protecting public health. By reserving the sale of certain transformed plants to pharmacists, the law aims to guarantee professional advice and quality control. undefined, I have encountered cases where traders, in good faith, sold plant capsules without realising they were breaking the law, thus risking fines that could reach several thousand euros.

What This Changes for You — Concretely

If you are the owner of a shop in Saint-Vincent-de-Tyrosse, for example an organic products shop or a herbalist, this decision has direct implications. You must check what you sell: medicinal plants in bulk (like lavender or thyme) may be authorised if they are listed in the 1979 decree and sold in their natural state. But as soon as you package them in capsules, tablets, or even pre-dosed sachets, you fall outside the legal framework. Concretely, if you sell ginseng capsules at €15 per box, you risk a fine of up to €3,750 for an individual, and much more for a company, not to mention the seizure of the products.

For tenants who operate a business (right to operate a commercial activity), caution is advised. If you rent premises to run a plant shop, ensure your activity is compliant. An unexpected inspection can occur at any time, and in case of infringement, you could see your lease (tenancy agreement) challenged for abnormal neighbourhood disturbance or non-compliance with commercial planning rules. In the jurisdiction of Mont-de-Marsan, the authorities are vigilant, particularly in tourist areas like Parentis-en-Born, where natural product shops are numerous.

If you are purchasing a business, have a legal audit carried out before the purchase. Check if the seller markets medicinal plants in transformed form. Otherwise, you might inherit costly disputes. For co-owners, if a shop in your building sells capsules illegally, this can attract inspections and harm the tranquillity of the co-ownership. How to react? In case of doubt, consult a legal professional to assess your situation. The limitation periods (time limit beyond which legal action is no longer possible) for these offences are generally 3 years, but it is better to act quickly to avoid prosecution.

Four Tips to Avoid This Type of Dispute

• Check the list of authorised plants: Consult the decree of 15 June 1979 to know which medicinal plants can be sold outside pharmacies. Keep this list up to date, as it may evolve.
• Avoid any transformation: Do not package plants in capsules, tablets, or other galenic forms (pharmaceutical forms). Sell them in bulk, dried or fresh, without substantial alteration.
• Train yourself and train your staff: Ensure that you and your employees know the rules of the pharmaceutical monopoly. Ignorance of the law is not a valid excuse in court.
• Consult a specialised solicitor: Before launching a new product line, have its compliance checked by a professional. This can save you from fines and lengthy, costly legal proceedings.

Deep Dive: Related Case Law and Developments

This decision fits into consistent case law. For example, a judgment (decision of a court of appeal or the Court of Cassation) of the Court of Cassation in 1990 had already confirmed that the sale of medicinal plants transformed into capsules was reserved for pharmacists. On the other hand, an earlier decision in 1985 had left some doubt by authorising certain simple preparations, but the Constitutional Council clarified matters in 1996.

The trend of the courts is clear: they protect the pharmacists' monopoly for anything related to transformed medicinal plants, in the name of public health. This means that, for the future, it is unlikely that this monopoly will be relaxed. On the contrary, with the enthusiasm for natural products, inspections could intensify, particularly in regions like the Landes, where tourism and local commerce are dynamic. Traders must therefore be extra vigilant and adapt by offering legal alternatives, such as selling plants in bulk with advice on their traditional use.

Key Points to Remember

FAQ:

• Can I sell medicinal plants in capsules in my shop? No, it is reserved for pharmacists, unless the plants are sold in their natural state according to the 1979 decree.
• What does "selling in their natural state" mean? It means selling the plant without substantial transformation, for example in bulk or dried, but not in capsules or tablets.
• What risks if I sell illegally? Fines of up to €3,750, seizure of products, and possibly closure of the business.
• How to check if a plant is authorised? Consult the list of the decree of 15 June 1979 and check its listing in the pharmacopoeia.
• What to do if I am already in breach? Immediately cease sales, withdraw the products, and consult a solicitor to regularise your situation.

Conclusion

Do you find yourself in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →