The legal status of hemp and cannabidiol (CBD) can be quite complex and sometimes confusing as legislation is constantly changing based on new data and opinions. The most important factors influencing the legal status of hemp and CBD in different countries are the content of tetrahydrocannabinol (THC), parts of the hemp plant used, and product category. Not all product categories are regulated to the same extent within Europe, and there are also some differences in national regulations. This blog covers mostly general EU regulations, but at the end, there is also a brief review of some country-specific rules.
LEGAL STATUS OF HEMP
There are 75 hemp (Cannabis sativa L.) varieties registered in the EU catalog of varieties of agricultural plant species. By Article 32 of EU Regulation 1307/2013, only sorts containing a maximum of 0.2 % THC are allowed for cultivation. Most European countries use this limit to distinguish between hemp and cannabis. However, the limit of 0.2 % THC will be elevated to 0.3 % THC in 2023 under the new common agricultural policy CAP.
CBD IN COSMETICS
In November 2020, the European Court of Justice ruled that a particular form of CBD is not a narcotic if derived from industrial hemp. Following this decision, the European Commission (EC) has added hemp-derived CBD to the permitted list of ingredients for cosmetic products and updated CosIng Database, which now also includes:
- cannabidiol derived from extract or tincture or resin of cannabis,
- Cannabis sativa leaf extract.
There are no restrictions regarding the use of isolated CBD. When it comes to hemp extract, it is important to consider its source, as only extracts of certain plant parts are allowed (e.g., seeds, leaves, and roots). Extracts of flowering and fruiting tops of the cannabis plant are not allowed in cosmetics given the entry 306 of Annex II to EU Regulation 1223/2009 and the classification of drugs from the UN Single Convention on Narcotic Drugs (1961). To summarize, cosmetic products with CBD are legal in all EU Member States if they comply with the applicable cosmetic regulations.
HEMP AND CBD IN FOODSTUFFS
There is no legal issue regarding to hemp foods such as hemp seeds, oil, proteins, or flour if derived from EU-approved hemp varieties as they fall in the category of seed-derived products (leaves and flowers are left in a ‘grey zone). However, the situation is not so simple for food supplements containing isolated CBD or full-spectrum hemp extracts.
In January 2019, the EC added cannabinoids to the Novel food catalog. Novel foods are covered in EU Regulation 2015/2283. Products considered novel have to be approved by the EC based on the detailed application submitted by the interested company. European Food Safety Authority (EFSA) performs a risk assessment and gives an opinion on the novel food. Only then can EC submit a draft of an act to authorize the placement of the novel food on the market. The last condition to lawfully place a CBD food product on the market is a favourable vote from the Standing Committee. The whole process is long and complex and hence represents a big challenge for all involved in the CBD industry, as a final decision can affect the entire CBD market.
INTERESTING COUNTRY-SPECIFIC REGULATIONS
As already mentioned, there are some differences from country to country when it comes to hemp and CBD products. Although these differences are not significant among the members of the EU as similar rules apply to all of them, some European countries have stricter or more liberal regulations compared to EU regulations (e.g., different THC limits).
Let’s start with Germany and Austria. They are both members of the EU, where the general limit for THC content is 0.2 %. However, only Germany follows this limit, while Austria set it to 0.3 % (applicable to hemp plants). What regards the status of CBD cosmetics and foodstuffs, all requirements discussed above apply.
In France, products derived from EU-certified hemp varieties which contain no more than 0.3 % THC are legal. In addition, all parts of hemp can be used for the industrial manufacture of extracts from December 2021.
The Czech Republic is another interesting example. Cannabis containing a maximum of 1 % THC is permitted for industrial, technical, and garden purposes, including sales. Various CBD products are offered and advertised, but such products often do not meet legal requirements. THC-free CBD cosmetics are legal. CBD is considered a novel food, but the products from hemp leaves or seeds that naturally contain CBD are permitted.
On the other hand, regulations are more liberal in Switzerland as it is not an EU member. CBD products such as oils, pastes, foodstuffs, and cosmetics are legal and freely sold as long as they are not represented as medicines or labeled in a way that would connect using the product with different health effects. In addition, Switzerland set a THC limit of < 1 %.
To conclude, legislation regarding hemp and CBD is evolving continuously. Therefore, it is essential to constantly monitor the situation and be inventive when looking for legal solutions to place hemp and CBD products on the market.
References:
https://www.tomhemps.com/en/blog/news/latest-cbd-laws-around-europe/
https://ec.europa.eu/info/food-farming-fisheries/plants-and-plant-products/plant-products/hemp_en
https://www.mishcon.com/news/european-commission-expands-permitted-cbd-ingredients-in-cosmetics
https://www.mishcon.com/news/european-court-finds-that-cbd-is-not-a-narcotic
https://cms.law/en/int/expert-guides/cms-expert-guide-to-a-legal-roadmap-to-cannabis/france
https://cms.law/en/int/expert-guides/cms-expert-guide-to-a-legal-roadmap-to-cannabis/czech-republic
