Sale of Medicinal Plants: A Regulated Freedom to Protect the Public

Imagine yourself in Avignon, at the Saturday morning market. You come across a stall selling medicinal plants: chamomile, valerian, St John's wort in bulk. The seller assures you they relieve stress and insomnia. But is it legal? Why can't you buy these plants anywhere other than a pharmacy? This question is asked by thousands of consumers and traders. The decision of the Constitutional Council of 1 April 2003 (n° 02-86.292) provides a clear answer: the monopoly of pharmacists on the sale of medicinal plants is compatible with the Constitution and European law. In other words, the State may restrict freedom of trade to protect public health. Let us decode this decision, which directly affects herbalists, organic grocery stores, and even amateur gardeners.

The Facts: an everyday story

In Pertuis, Vaucluse, a trader named Mr X ran a natural products store. Among his shelves, he offered capsules and sachets of pulverised medicinal plants: Roman chamomile, valerian, passionflower, etc. He did not hold a pharmacist's diploma. In 1999, a joint inspection by the Directorate General for Competition, Consumer Affairs and Fraud Control (DGCCRF) and the Pharmacy Inspectorate took place at his premises. Result: medicinal plants were sold without authorisation, in breach of Article L. 4211-1.5° of the Public Health Code, which reserves the sale of medicinal plants listed in the pharmacopoeia to pharmacists, unless an exemption applies. The Avignon public prosecutor's office prosecuted Mr X for illegal practice of pharmacy. Before the criminal court, he argued that this prohibition contravened Article 7 of the European Convention on Human Rights (no penalty without law) and was discriminatory towards products imported from other EU member states, thus violating the principle of free movement of goods (Article 28 of the EC Treaty). The court convicted him, and the Nîmes Court of Appeal upheld the conviction. Mr X then appealed to the Court of Cassation. The Court of Cassation referred a priority preliminary ruling on constitutionality (QPC) to the Constitutional Council regarding the compatibility of Article L. 4211-1.5° with the rights and freedoms guaranteed by the Constitution. The Constitutional Council delivered its decision on 1 April 2003, upholding the contested provision.

The Court's Reasoning — Decoded

The Constitutional Council examined two main grounds of challenge. First ground: violation of Article 7 of the European Convention on Human Rights (ECHR), which requires that offences and penalties be provided for by law. Mr X argued that the concept of "medicinal plants" was too vague to constitute a sufficient legal basis. The judges rejected this argument: the pharmacopoeia, which lists the plants concerned, is a precise, accessible, and foreseeable regulatory text. The law refers to a decree, which is permissible as long as the legislature has laid down the principle and limits. In short, the law is clear enough for everyone to know what is prohibited. Second ground: violation of Article 28 of the EC Treaty (now Article 34 TFEU) on the free movement of goods. Mr X claimed that the pharmacists' monopoly prevented the sale of plants imported from other EU countries. The Constitutional Council responded that the regulation applies without distinction to domestic and imported products. It is therefore not a measure having equivalent effect to a quantitative restriction within the meaning of EU law. In other words, a rule that applies equally to all products, regardless of origin, is not discriminatory and falls outside the prohibition of Article 28. The decision thus confirms that the protection of public health (a legitimate objective) justifies a restriction on freedom of enterprise and intra-European trade. This is neither a reversal nor an evolution: the Constitutional Council follows a consistent line of case law, both national and European, which accepts monopolies justified by overriding reasons of health.

What This Means for You — Practical Implications

This decision has immediate practical implications for several categories of people. For non-pharmacist traders: if you sell medicinal plants (chamomile, valerian, St John's wort, etc.) without being a pharmacist, you are committing an offence. Capsules, powders, mother tinctures are affected. Condiment or food plants (thyme, mint, rosemary) are not, unless they are presented as medicinal. For herbalists: the profession of herbalist has not been recognised in France since 1941. The sale of medicinal plants is therefore reserved for pharmacists, except for an exemption for certain bulk plants (list set by decree). In practice, in Pertuis, an herbalist selling valerian capsules without being a pharmacist risks a fine of €3,750 and up to one year's imprisonment. For consumers: you cannot buy medicinal plants in an organic grocery store or at a market, unless they are explicitly authorised by decree (e.g. linden, mint, Roman chamomile in bulk). Capsules and preparations are exclusively available in pharmacies. For pharmacists: this decision reinforces their monopoly. It is advisable to be well aware of the list of plants authorised for over-the-counter sale and to inform customers about the risks of uncontrolled plants. If you are in this situation, you must check your compliance with the Public Health Code. When in doubt, it is better to consult a lawyer specialising in pharmaceutical or property law (if the dispute concerns the commercial premises).

Four Tips to Avoid This Type of Dispute

• Check the list of plants authorised for over-the-counter sale: consult Decree No. 79-753 of 29 August 1979, as amended, which lists the medicinal plants that may be sold by non-pharmacists (in their natural state, unprocessed). In Avignon, an organic grocer selling bulk linden is within his rights, but if he offers valerian capsules, he is committing an offence.
• Do not associate therapeutic properties with plants: even for authorised plants, it is prohibited to present them as curative or preventive. Example: do not write "relieves anxiety" on a packet of chamomile. This would constitute illegal practice of pharmacy.
• Consult a lawyer before starting a plant sales activity: a legal professional can analyse your product range and help you avoid a conviction. undefined, I have seen cases where traders received heavy fines for selling St John's wort capsules without authorisation, believing they were acting lawfully.
• For importers: ensure that imported plants are on the authorised list. Even if they are legal in their country of origin, they must comply with the French pharmacopoeia. A product imported from Germany containing valerian capsules can only be sold by a pharmacist.

Further Reading: Related Case Law and Developments

This decision of the Constitutional Council is part of a line of case law favourable to the pharmaceutical monopoly. In 1984, the Court of Justice of the European Communities (CJEC, Case 174/82) had already ruled that the French regulation on medicinal plants was compatible with Community law, as it pursued an objective of public health. In 2002, the Court of Cassation (Crim., 12 February 2002, n° 01-80.123) upheld the conviction of an herbalist for illegal sale of plants. The 2003 decision therefore merely confirms a strong trend: the protection of health takes precedence over freedom of trade. However, note that since 2015, an Order of 24 June 2014 expanded the list of plants authorised for over-the-counter sale, allowing more plants to be sold without a pharmacist (e.g. echinacea, turmeric). But processed forms (capsules, extracts) remain reserved for pharmacists. The trend is towards gradual relaxation, but the monopoly remains the principle.

Key Takeaways

1. The pharmacists' monopoly on medicinal plants is constitutional and compatible with EU law. It is justified by the protection of public health.
2. Only bulk plants on a list set by decree may be sold outside pharmacies. Capsules, powders, and preparations are reserved for pharmacists.
3. Presenting a plant as medicinal (even if authorised) outside a pharmacy is prohibited. This constitutes illegal practice of pharmacy, punishable by a fine and imprisonment.
4. If in doubt about the legality of your activity, consult a lawyer. A simple check can save you from criminal prosecution.
5. For consumers, prefer buying processed medicinal plants from a pharmacy: you benefit from advice and quality control.

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