Cannabidiol (CBD) Products could face enforcement action: from legal high to legal low?

31st January 2019

The Food Standards Agency is understood to be considering its options following the surprise re-classification of CBD products as a ‘Novel Food’ by the European Food Safety Authority.

CBD is one of a number of chemical compounds found within the Cannabis sativa L plant. In recent times, CBD has been used in many products designed for human consumption, including oil, snacks and drinks.

The legal regime covering the utilisation primarily originated from two sources: Exempt Product or Medicinal Use exemptions under the Misuse of Drugs Regulations 2001, and the EU regulations in respect of Novel Foods.

A Novel Food is regarded as one which does not have a history of consumption by people in the European Union (“EU”) before May 1997. The EU keeps a catalogue of products deemed to be Novel Foods. Prior to the legal sale of a Novel Food, there is a stringent and lengthy market safety and authorisation process to be followed. Within the UK, this process is managed by the Food Standards Agency (“FSA”).

Until the re-classification, the EU register of Novel Foods classified CBD food products as Novel only if the concentration of CBD in the product was at a higher level than that found within the source plant material.  As such, it was possible to avoid the Novel Foods provisions by ensuring the CBD content in a food product was restricted to a level lower than the Cannabis sativa L plant that it originated from.

However, the change in re-classification is such that food products containing CBD are now potentially regarded as Novel Foods requiring specific product approval from the EU, and in the UK by the FSA.  In effect, this could result in CBD products not authorised for sale as Novel Foods being deemed as unsafe and unlawful.

The FSA has yet to make a public announcement regarding its position – but could potentially seek the assistance of local Trading Standards Agencies in forcing the withdrawal of such products from sale until they complete the Novel Foods application process and attain approved status.

Given the number of CBD users, and the range of stakeholders in the growing commercial sector, there may well be a sense of grievance at such a surprising and rapid turn of events.

It will be interesting to consider in detail the reasoning being the re-classification of CBD together with the legal powers and duties relied upon by the FSA in considering enforcement action.  Other questions will inevitably be asked: did stakeholders have a legitimate expectation that their CBD products could continue to be sold?  Have any changes been the subject of adequate consideration and consultation?  There is at least the prospect of legal challenges to any hasty action affecting this growing industry.

In the meantime, if you are involved in the CBD business the latest developments should serve as a serious health warning: proceed with extreme caution, and consider carefully whether you will ultimately require authorisation before going to market. A story of legal lows and highs lies ahead.

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