The cannabis industry is clearly in flux

4 June 2019

Following on from our previous blog Confused, Bewildering, Dubious? Cannabidiol in food and drinks: What does the future hold? - let’s get back to basics.

There 113 identified cannabidiols aka CBD’s found in the cannabis plant. There is much debate around the efficacy of CBD oil that does not contain the active ingredient, tetrahydrocannabinol (THC). THC is known to be the principle psychoactive constituent of cannabis.

As set out in our previous blog, the EU Novel Foods Committee has been considering evidence on certain hemp derived products, including CBD, particularly to evaluate whether they should be classified as ‘Novel Food’. The classification means that CBD has to be authorized by the European Commission (EC) before it can be marketed within the European Union (EU) in accordance with the Novel Foods Regulation (Regulation (EU) No 2015/2283) (the Regulations).

The European Food Safety Authority (EFSA) is of the view that CBD should be classified as a novel food, rather than a food supplement, as it has previously been. This clearly has an effect of the continued commercialisation of CBD as a food supplement. Many retailers, including the likes of Holland and Barrett have sold CBD as a food supplement.

In the United Kingdom (UK), the Food Standards Agency is responsible for ensuring that novel foods on the market are safe for consumers. It presently states as follows:

Recent changes affecting cannabidiol (CBD) products

There has been a recent change to the EU Novel Food Catalogue which affects some cannabidiol (CBD) products.

Food businesses have not been able to show there was a significant history of consumption of these products in food and food supplements prior to May 1997 in the EU.

Under the Novel Food Regulations, foods or food ingredients which do not have a history of consumption need to be evaluated and authorised before they are permitted to be placed on the market.

The FSA accepts the clarification from the EU that CBD extracts are considered novel foods. We are committed to finding a proportionate way forward by working with local authorities, businesses and consumers to clarify how to achieve compliance in the marketplace in a proportionate manner’.

What does this mean for businesses? 

In short, as a business owner, it is your responsibility to establish whether any products you sell or make contain novel foods.  The current entry for CBD can be found here and clearly sets out that safety assessments are now required in relation to a number of CBD’s.

Canna Kitchen fell victim to its doors being closed following a police raid in May 2019. The business describes itself as offering ‘organic cannabinoid infused cuisine’. The owner, commenting on the raid, stated that he has always complied with Home Office guidelines regarding the content of THC (approved seed types with a THC content not exceeding 0.2%) and that the goods seized were industrial hemp which was legally imported.

To clarify, the Home Office is responsible for issuing licences in respect of the cultivation and possession of industrial hemp for a specified commercial purpose. CBD as an isolated substance, in its pure form, is not a controlled drug under the Misuse of Drugs Act 1971 or Misuse of Drugs Regulations 2001. The issue regarding its classification as a novel food is entirely separate. 

There is much confusion around the issue of CBD and industrial hemp at present, and therefore it is imperative that business owners and investors take advice on this issue. The consequence of selling a novel food without safety assessment and permissions from the EC depends on the member state. Article 29 of the Regulations states:

Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall notify those provisions to the Commission by 1 January 2018 and shall notify it without delay of any subsequent amendment affecting them.

Local authorities, including Trading Standards and Environmental Health Officers, are responsible for the enforcement of novel foods legislation. The Novel Foods (England) Regulations 2018 state:

Enforcement

3.  It is the duty of a food authority within its area to enforce these Regulations and Regulation (EU) 2015/2283.

 

Offence and penalty

4.  A person who contravenes or fails to comply with any of the specified Union provisions as read with Article 35(2) of Regulation (EU) 2015/2283 is guilty of an offence and liable on summary conviction to a fine.

 

Civil sanctions and notices

5.—(1) Schedule 2 makes provision for fixed monetary penalties.

(2) Schedule 3 makes provision for compliance notices and stop notices.

 

As such, falling foul of the law can lead to huge cost implications as well as potential criminal charges - we can help.

About the authors

Shannett Thompson is a Senior Associate in the Regulatory team. She has substantial experience in advising individuals in relation to their regulatory obligations in the wider context. Her experience extends through the initial investigatory stages, interim order, substantive hearings and appeals. 

Shannett is adept at advising and assisting individuals in respect of registration/licensing applications. She regularly works with the criminal team with regard to regulatory matters emanating from criminal convictions and cautions.

Nicola Finnerty is a Partner in the Criminal Litigation team and is a leading criminal defence expert in both business and general crime. She advises on a wealth of matters related to both these areas as well as representing individuals and families in public inquiries and inquests.

Nicola has acted for many high profile individuals who have needed advice on criminal matters. She has also represented corporate clients, financial institutions and professional firms in investigations and proceedings brought by the SFO, CPS, FCA, HMRC and other prosecuting bodies.

 

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