The European Commission’s (EC) recent classification of cannabidiol (CBD) as a novel food has threatened to disrupt the sale of CBD in the UK. A novel food is an official category that applies to foods with no historical consumption before May 1997 and they can only be sold under strict regulation.
Even with Brexit approaching the UK’s Food Standards Agency (FSA) have agreed to respond to any European ruling during the transition period. The UK CBD market is growing so quickly that regulatory bodies are struggling to find evidence on which to build relevant policy.
The current situation on novel food status in the UK
The General Picture
Novel foods may be produced and sold but not without a restrictive license that must be applied for by retailers. While this has been implemented centrally by the EC, the food standards agencies of each member state have some leeway in how and when they decide to enforce it. This has created an extra level of uncertainty for retailers. The UK FSA could ultimately require all retailers to cease trading until the granting of a license.
Application for the sale of novel foods – There is currently a license application pending for CBD products with a daily intake of up to 130mg. If granted this will secure the use of products that fall within its description to be sold in the EU and UK within a seven-month period.
Response from the European Industrial Hemp Association (EIHA)- The EIHA have repeated a claim that there is conclusive evidence that CBD does have a long tradition of use and should not be seen as a novel food: “We are requesting the European commission to recognize hemp extracts with naturally occurring CBD levels as traditional in food.” If this evidence is recognized UK retailers may be able to return to previous CBD guidelines which treat it as a food supplement.
Response from the Cannabis Trades Association- In a meeting at the beginning of March the CTA met with the FSA to share industry practice and get a clarification on current rulings. The CTA reported that the FSA had many misconceptions about the industry and were in some cases completely unaware of how certain products were produced. If they have an inaccurate understanding of current practice this could result in them acting hastily to implement their own policy.
Response from the FSA- However, the FSA assured the CTA that they did not see a reason to enforce any EU ruling in a way that would impact on the economic activity of the industry. They noted that any actions would remain proportional. While this is reassuring there has still been no formal statement clarifying the FSA position, leaving retailers with an uncertain future.
Legal challenge from local organisations
Frustration continues for retailers who are expending large amounts of money creating contingency plans for what may happen next. The World Health Organization (WHO) have stated that they believe CBD and cannabis extracts to be entirely safe, so it is generally believed that it is not public safety that is driving the EC and FSA’s decisions.
Because of the impact on retailers the UK CBD industry group Cannapro has recently written to the FSA claiming that its members have a right to compensation following the ‘misclassification’ of CBD as a novel food. They have stated that this classification is incorrect and has caused unnecessary damage to the industry.
They also state that the FSA’s lack of information and clarity has led to unnecessary contingency planning at a cost to its clients. At the same time the CTA have stated their intention to move forward with legal action against the EC’s classification of CBD as a novel food.
The future for CBD
The future of CBD is as uncertain as it’s present. Many global bodies with influence often seem to express polarized views when it comes to CBD and medical cannabis. Both are still shrouded in miscommunication and legal proceedings.
The main events that will influence the future of CBD are:
- The possible reclassification of CBD as a traditional food. The combined efforts of the EIHA, Cannapro and the CTA all at different levels may result in a decision to correct this classification. This would ultimately be the best outcome with little red tape expected to follow.
- If cannabis extracts remain defined as a novel food, then products will require licensing. The outcome of the current application will have an effect Europe wide and will set a precedent for further application as well as allowing the sale of some products.
- The last possible event depends on the actions of the food standards agencies of each member state. In the UK the FSA could continue to take little action to remove products but also refuse to clarify the issue. This is the most likely and most frustrating outcome leaving retailers constantly on the back foot never sure if their industry is at an end at any point.
However, the FSA could also clarify their position based on information provided by the CTA, the WHO and the EIHA and declare that there will be no UK enforcement of any novel food rulings.
Conclusion
In amongst all the confusion and misinformation very little is known making the future difficult to predict. The best course of action for retailers seems to be to unite with industry bodies, self-regulate to their own safe standard, maintain transparency in proceedings and plan for the worst.
The saving grace of the CBD industry is how lucrative it could potentially be. It is unlikely that anyone will want to destroy such money-making potential whatever their opinion on cannabis.
