CBD in Europe – Legislation on the EU and National Levels

In January 2019, the European Commission changed the entry in the novel foods catalog for cannabinoids. Novel Food is defined as food that had not been used for human consumption to a significant degree in the European Union before 15th May 1997. Previously to this decision, only enriched CBD was considered novel food. Now a new entry Cannabinoids was created, and it states all hemp extracts to be novel. Also, the entry of Cannabis sativa L. was changed and now only seed-derived products are considered food. The leaves and flowers are left in a ‘grey zone’.

The change in the form of the European Commission’s unbinding advice for the member states was disapproved by the European Industrial Hemp Association (EIHA). They called the measure ‘unnecessary, illogical and illicit’ and claimed that, although hemp extracts are not formally nor legally forbidden, many European states are now taking ‘disproportionate and unjustified’ measures. In 1998, the industry received a letter from the EU’s PAFF Standing Committee that encouraged many business decisions for the next twenty years. January’s decision marked the beginning of an important shift in legislation for the member states. At the level of the European Union, CBD is now considered to be the unauthorized new food.

CBD/THC Legislation in Italy

Some of the measures European states are now taking can be illustrated by a recently adopted resolution proposed by the Agricultural Commission in the Italian parliament. It proposes a raise in the THC level in the industrial hemp that comes from EU varieties from 0.2 to 0.3 %. This would level it up with the rest of the global market since permitted levels of THC in CBD products in North America and Australia are 0.3 %. It also asks for the regulation on the sales of dried, chopped or pelleted biomass from the entire plant or its parts, with THC content not exceeding 0.2 %. There are no current guidelines on CBD or THC limits considering food in Italy, and this resolution calls for defining them.

In practice, to avoid leaves and flowers being left in the ‘grey area’ and to escape further regulatory confusion, some Italian companies started registering CBD hemp flower products as animal feed. However, registering pure cannabinoids such as CBD extracts as animal feed is not permitted. CBD for pet food is also forbidden.

Italians are not alone in this novel practice. Following the novel food change, many European companies approached the issue by relabelling their products. Austrian bio-tech company CannHelp recalled all of its CBD-based oils, foods, and cosmetics. The company has relabelled the oils so they are now categorized as “aromatic products” and, as such, placed back on the shelves.

CBD/THC Legislation in Germany

The German Office for Consumer Protection and Food Safety (BVL) outlawed CBD in food and food supplements in March 2019. The products containing cannabidiol are prohibited unless they were authorized as a medicinal product or novel food. As of April, Nordic Oil and other German companies were subjected to a serious of raids, with their products containing CBD confiscated. The simultaneous searches targeted a number of shops selling CBD products. Bavaria is considered to be the toughest German federal state when it comes to cannabinoids, but the shops in other parts of the country, e.g. Hamburg, were reportedly searched on suspicion of narcotics trafficking, too.

CBD Oil Novel Food in Spain

In April 2019, the Spanish Agency for Consumer Affairs, Food Safety and Nutrition (AECOSAN) issued guidance that stated CBD oils, regardless of whether its origin is natural or synthetic, as well as extracts and other parts of the plant Cannabis sativa L. (flowers, leaves, and stems) are considered novel food.

THC Classified as Narcotic in Sweden

In June, the Swedish Supreme Court ruled CBD oil containing low levels of THC to be classified as a narcotic. Also, the court disagreed with the Swedish Medical Products Agency’s proposal to put the products for oral consumption or inhalation containing cannabidiol under pharmaceutical legislation. Industrial hemp is an exemption from Swedish anti-drug legislation, and it only applies to plants, not products. Since 2017, eight companies selling CBD oil as a dietary supplement have been banned from distributing their products by the Swedish Medical Products Agency. Sweden also leads the European Union’s member states in the number of CBD notifications submitted through the EU’s Rapid Alert System for Food and Feed (RASFF) portal. Out of 35 notifications, 14 are from Sweden.

Polish Tax Classification on CBD oils

In Poland, tax classification places CBD oils in the same group as cooking oils and margarine, and therefore subjects to a 5% value-added tax (VAT) rate, comparing to a 23% rate to medical cannabis. Local reports say the Chief Sanitary Inspectorate and the police have intensified their enforcement activities on retail stores that sell CBD products. More than 20 Polish CBD stores were subjected to confiscation of their goods by law enforcement bodies.

Cannabis as “Other Smoking Tobacco” in Belgium

Another news in European legislation came from Belgium in May, when Public Finance Service (FPS Finance) issued an announcement clarifying that “plant-based smoking products containing CBD and some THC content” were legal and belonged to the category of “other smoking tobaccos”. It defined the products as dried hemp flowers that are tobacco-free, can be consumed through combustion and did not contain more than 0.2% THC. The Health, Food Chain Safety and the Environment (HFCSE) called the manufacturers to contact the authorities before placing any herbal product for smoking on the market. This move brings a tax of roughly 30% and an additional 21% for VAT on hemp flowers.

Ukraine and Slovakia – Virtually Illegal

Ukraine has kept its THC level at 0.08% (for seed and fiber production), and Slovakia is the only country in the European Union where CBD and THC are still illegal. Only the cultivation of industrial hemp varieties approved by the EU and with less than 0.2% THC is legal in Slovakia, and it cannot be cultivated to extract CBD. The local pharmaceutical business is also seeking approval for the development and manufacture of cannabinoid-based drugs in both states.

Bulgaria to Set CBD Regulation

Not all EU member states have announced the enforcement of novel food catalog guidelines on CBD, and there are unconfirmed reports that Bulgaria recently issued a license that would permit the sale of CBD food products.

CBD “Soft Drug” in the Netherlands

The Netherlands, as the biggest European hemp producer, has a legislative framework derived from the Opium Act introduced in 1912, and amended in 1976, when the distinction between ‘hard’ and ‘soft’ drugs was introduced. By this Act, CBD is not legal but tolerated as a soft drug. The Opium Act was amended in 1999 when hemp that is produced exclusively for the fiber hemp market with a THC content of less than 0.2% was legalized. It’s still illegal to produce CBD oils because it’s illegal to produce plant extracts, so the hemp is being produced in the Netherlands and then processed abroad. Furthermore, under Dutch law, the maximum level of THC in CBD products is 0.05%. CBD isolates and THC extracts are prohibited for sale to the public but allowed for export.

Switzerland 1% THC

In Switzerland, the legal level of THC is at 1% since 2017.

Great Britain – CBD Legal as Novel Food

In Great Britain, the biggest CBD market in Europe, THC is listed as a controlled substance under the Misuse of Drugs Act 1971. CBN (Cannabinol) and CBDV (Cannabidivarin) are also class B controlled substances. Only CBD isolated in its pure form is not listed as a controlled substance. Growing your own cannabis and hemp is allowed with a license from the UK Home Office for licensed medical distributors or companies that sell nutritional supplements. CBD products sold as nutritional supplements must be labeled in accordance with The Food Supplements Regulations from 2003. The sale of hemp flowers and buds is prohibited. CBD extracts and other derived products are considered novel foods and need to gain authorization. As we are informed by the Food Standards Agency (FSA), currently there are no CBD extract products authorized as novel foods in the UK and the products on the market are in contravention of the novel food regulations.

The ‘grey zone’ of the European legislative becomes even greyer knowing CBD was never listed as a food supplement in the EU. The reference EU legislation in the area of food supplements is Directive 2002/46/EC, but the use of substances other than vitamins or minerals in the manufacture of food supplements may be governed by national rules or may be subject to other specific EU legislation.

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