A German court has accepted the European Commission’s categorisation of Cannabidiol (CBD) as a Novel Food in a ruling that could have wider implications for the availability of CBD-based consumer products across the EU.
The September 2019 ruling formally aligns Germany with the European Commission’s categorisation of Cannabidiol (CBD) as a Novel Food ingredient.
The European Food Safety Authority’s advisory Novel Food Catalogue saw CBD (above natural plant concentrations) classed as novel in 2018, and all cannabinoids further restricted as novel ingredients for food in January 2019.
Regulators in each Member State must accept the EFSA’s categorisation and decide whether or not to enforce it.
The German Court upheld an enforcement action by Federal Office of Consumer Protection and Food Safety (or BVL) against the selling of food or food-supplement products containing CBD without authorisation.
Many in the industry have argued that the long history of CBD in Hemp extracts, derived using traditional propagation methods, mean that the classification as novel is incorrect. This was rejected by the Court.
The ruling could have wider implications, with authorities in other EU Member States expected to follow suit.
Although the UK’s Food Standard Agency has accepted the EFSA’s categorisation of CBD as Novel, it so far seems reluctant to enforce it. Local Authorities, through their Environmental Health and Trading Standards Departments, would be charged with enforcement. Our local authority has informed us that they are awaiting clear guidance on the status of CBD and cannabinoids from the FSA.
So, for now, CBD-based products are available in the UK.
The Cannabis-based products Industry has grown at an extraordinary rate over the last few years. The Brightfield Group estimate the European CBD market to be worth $415m by the end of 2019, growing to $1.7bn by 2023, with growth following increasing awareness of the potential health benefits of CBD.
Amongst the many reputable sellers marketing reliable products within regulations, there are bad actors, eager to cash in on this rapid growth.
In June 2019, industry association The Centre for Medicinal Cannabis reported that they had tested 30 CBD-oil products that were widely available in the UK. [The results haven’t been published publicly.] The CMC reported that 11 contained less than 50% of their advertised CBD content, and 45% had levels of THC or CBN (controlled substances in the UK) that made them illegal.
Such reports have left Authorities concerned about how Consumers are protected and increased pressure on them to assert some control.
The rapid growth of the CBD Market has highlighted that regulations and the law, as they apply to CBD-based consumer products, are complex, creating difficulties for consumers and for the industry.
Misreadings or misapplications of rules by some in the industry, through ignorance or for their own convenience, undermines the efforts of the many good operators. Those that are focused on producing high-quality and reliable products, within the law, are frustrated.
In the absence on clear guidelines from the FSA, industry bodies like the Cannabis Professionals, Cannabis Trades Association and the European Industrial Hemp Association have, for a long time, helped businesses navigate these rules, with consumer protection central to guidance.
Awareness of standards and Consumer education have helped expose bad players. Quality assurance initiatives, such as the CMC’s Kite Mark and TrustCanna schemes, might also have a part to play in future.
Should the UK’s FSA enforce the EC’s categorisation, manufacturers and sellers would require authorisation for their CBD-based products before they could be marketed here.
Applications can cost up to €300K and take two years, raising fears in the Natural-Products Industry that many selling CBD-based food supplements, beauty products and other consumables, would be forced out of business.
It is thought that up to nine suppliers have lodged applications with the EFSA to date. Enforcement by the UK’s FSA would, at the very least, reduce market supply until such applications have progressed through this lengthy process, assuming the EFSA ultimately approve them.
A requirement for Novel Food authorisation would, undoubtedly, be welcomed by big Pharmaceutical companies as it would side-line the many smaller operators that have helped develop the CBD and Hemp-based products sector.
For consumers too there is concern. A reduced supply and inevitable price hikes could mean that many people currently using such products to support their health would be unable to access them.
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