In November 2020, a landmark ruling by the Court of Justice of the European Union said that CBD made from the flowers of the hemp or cannabis plant should no longer be considered a narcotic. This was quickly backed by a decision from the EU’s law-making body the European Commission. Days later, the United Nations’ Commission on Narcotic Drugs finally voted to remove cannabis and its derivatives from a list of the most damaging drugs, opening them up for potential use as medicines.
This rapid series of changes to international law and regulations is being seen by many in the CBD industry as a huge victory and the gateway to a better regulated sector, with more reliable, higher quality products.
Here we examine the details of these changes and what they could mean for CBD producers and their customers…
CBD, or cannabidiol, is an extract of the hemp or cannabis plant. Unlike THC, the psychoactive compound in cannabis, CBD won’t get you high but there is increasing evidence that it can be used as a natural remedy to treat a wide range of conditions, including pain, anxiety and sleep disorders.
CBD is sold as a bottled oil, taken directly by mouth or added to food and drink, as well as in chewable sweets, capsules, topical creams and e-juices used for vaping.
What was the case the EU Court of Justice ruled on?
The case in question concerned the prosecution in France of the company Kanavape over its CBD vaping liquids.
French law makes a distinction between products made with CBD extracted from only the leaves and seeds of the hemp plant compared with those made with the entire plant including the flowering parts. The latter are currently banned in France even if they contain legal levels of THC, the psychoactive element of cannabis.
Kanavape’s CBD is made in the Czech Republic, where use of the entire hemp plant is legal, but marketed and sold in France, where it is not.
After years of legal wrangling, the case was referred to the supreme court on matters of EU law, the Court of Justice of the European Union (CJEU).
What did the EU Court of Justice say about the French legal case?
In November 2020, the Court of Justice of the European Union ruled that CBD made from the entire hemp plant, including the flowers, is not a narcotic according to “the purpose and general spirit” of the 1961 United Nations’ Single Convention on Narcotic Drugs because “it does not appear to have any psychotropic effect or any harmful effect on human health”.
And if CBD, of any type, is not a narcotic, then banning it in France violates EU law on the free movement of goods within the European Union.
What was the impact of the EU Court of Justice ruling?
The immediate impact of the ruling is that the French Court of Appeal will likely set aside its prosecution of Kanavape. It also means that, since there is no apparent public health danger from CBD, France will almost certainly have to change its laws on the marketing of whole-plant CBD products to bring them in line with EU law.
“The European Court of Justice was quite clear that the French policy banning CBD extracted from the buds and the flowers of the plant is incompatible with EU regulations so I suspect you will see the French authorities making the change very soon,” Robert Jappie, a Partner specialising in cannabis regulation at law firm Ince, tells Jersey Hemp.
“The court was very specific, they could see no evidence that suggests that CBD causes any harm to humans so if the French were claiming that they were placing this restriction because they were trying to protect public health, they didn’t really have the scientific basis for that – there wasn’t any grounds to say that it was a public health issue…”
Perhaps most significant of all, the EU Court of Justice ruling influenced a decision by another European body – the European Commission – relating to CBD products.
What did the European Commission decide about CBD products?
The European Commission is the executive branch of the EU responsible for proposing and implementing new legislation in Europe. The Commission had been pursuing the classification of CBD derived from hemp flowers as a narcotic, which would have made CBD products using the whole plant illegal in the European Union (as per France’s existing laws).
However, the EU Court of Justice ruling that CBD – whichever part of the plant it is derived from – is not a narcotic left the Commission will little option but to abandon that course, paving the way for CBD to instead be classified as a so-called Novel Food, something the UK’s Food Standards Agency had been advocating for.
What are Novel Foods?
Novel Foods are defined by the Food Standards Agency as foods that do not have a ‘history of consumption’ or, more specifically, “foods which have not been widely consumed by people in the UK or EU before May 1997”.
Now that CBD has been classified as a Novel Food, businesses that want to market it in the UK or EU will have to submit extensive applications to the European Commission/FSA to have each of their products authorised.
The EU is yet to set a deadline for applications, but in the UK they must be validated by 31st March 2021. Existing products can continue to be sold during this time but there is currently a ban on new products being brought to the market.
What does this mean for CBD vaping products?
On one hand, CBD of any kind will no longer be classified as a narcotic, on the other the CBD in e-juices used for vaping is not classed as a food either – and for now that leaves CBD vaping products caught between two stools.
“Inhalation is not ingestion so Novel Foods does not apply to vaping,” says Jappie. “Vaping of CBD falls into this regulatory black hole. The Tobacco Products Directive – the tobacco-related products regulations in the UK – does not cover CBD vaping, it specifically applies to nicotine vaping. But Novel Foods applies only to food and vape liquids are not food.”
To clarify, that doesn’t mean vaping CBD is illegal, just that until further changes are made it remains, as Jappie says, “highly unregulated”.
The United Nations reclassification of cannabis
On 2nd December 2020 the United Nations’ Commission on Narcotic Drugs (CND) voted – albeit in a close call (27 to 25, with one abstention) – to accept a recommendation from the World Health Organisation and remove cannabis and its derivatives from its most strictly controlled ‘Schedule IV’ drugs classification.
Schedule IV includes addictive opioids like heroin and generally discourages their use for medical purposes.
While many countries are already involved in medical cannabis programmes, the move by the UN effectively puts the rubber stamp on the therapeutic potential of cannabis and its extracts like CBD and, according to Jappie, will make the prospect of investing in the industry, improving regulation and even considering legalisation much more attractive to governments.
“I think it’s going to have a huge impact, particularly given the current climate, with the Covid pandemic, as governments are going to be on the lookout for job creation and tax revenue opportunities,” says Jappie.
“By removing it from Schedule IV of the convention, it makes it that much easier for governments to take further steps in relation to legalisation and regulation, so it really opens the door for these things.”
What will the changes mean for CBD producers and the industry?
CBD producers in the EU and UK must now register their existing products as Novel Foods – “a very complex and expensive process” says Jappie, but one that ultimately will pay off for both consumers and responsible producers, with only high quality, safer products allowed on the market.
There will be extra work for some businesses that don’t grow their own hemp or produce their CBD themselves as they may not currently know as much about the provenance and quality of the raw materials they are using as the Food Standards Agency or European Commission will insist upon.
“The UK has definitively said they want brands to become more knowledgeable about their supply chain,” says Jappie. “That’s the point of this – you can’t just buy in any old product and sell any old finished product. For the sake of consumers, you have to know where your product is coming from, you have to know how it’s been produced, you have to know that you’re buying it from a reputable company…
“So yes, you will see some brands having to be more aware of where they’re getting their product from, probably changing supplier to make sure that they are using a Novel Food-compliant supplier. So there are going to be a lot of brands on the market looking for new suppliers I think, as a result of this Novel Foods regime.”
In the UK, there is also likely to be a pause in new CBD products appearing on shelves or online because the FSA wants existing products approved before others can be introduced.
“UK regulators have admitted that the current regime will effectively kill innovation within the sector for at least a little while… as of February 2020, you’re not allowed to bring any new products to the market. Their rationale is that they want established businesses to focus on achieving Novel Foods compliance before flooding the market with new products.”
In general, though, it’s good news for the CBD industry, with trustworthy CBD brands likely to welcome the long-term rewards of a better regulated sector.
What will all this mean for CBD users?
While the new regulations may make things initially difficult for CBD brands that don’t know the full provenance of their products, it’s almost entirely good news for consumers.
In the current unregulated market, CBD users don’t always know what they’re getting when they buy certain products. Many CBD brands sold in the UK use imported hemp where a low cost-price is more important than quality and traceability. And products don’t always do what they say on the tin.
A 2019 investigation commissioned by the Centre for Medical Cannabis tested 29 CBD products available in the UK. The best were deemed “very high quality and… good options for today’s consumers”, with Jersey Hemp named “one of the most compliant, high quality and accurately labelled products that we tested”. However, 11 other products had less than 50% of the advertised CBD content and one sold at a high street pharmacy contained no CBD at all. That’s why the Novel Foods process is so important for consumers – because it means brands like these will either have to come up to standard or will no longer be able to sell their products.
“Those kinds of operators undermine the market in a big way,” says Jappie. “[Under new regulations] you will have only reputable operators selling products and they will know exactly where the product has come from – and then consumers can be safe in the knowledge that they’re actually getting what they pay for.”
Alongside these clear benefits for those who use CBD as a wellness product, there is also likely to be a longer-term impact on regulation and research into cannabis-based medicines, which could in turn one day make a significant difference to patients.
Speaking about the United Nations decision to re-classify cannabis as worthy of clinical study, Dr Daniel Couch, medical lead at the UK’s Centre for Medical Cannabis, tells Jersey Hemp “For decades cannabis was considered at this international level to have no medical benefit and we are relieved that the international community felt there was enough evidence to move cannabis to schedule 1.
“Although in the very near future this will have no practical implications for the prescribing and trade of cannabis medical products and CBD, it is clear that this paradigm shift will have deep ramifications on the way these products are approached by both researchers and government policy makers over the coming years”.