What has happened?
On 13 February 2020, the UK Food Standards Agency announced that businesses that wish to sell cannabidiol (CBD) products must submit an application for novel food approval prior to 31 March 2021. Novel food approval usually takes a minimum of 18 months to complete and requires sufficient scientific data to establish the safety of the food. Only those products that are covered by a fully validated application can be sold after 31 March 2021.
Businesses that have not submitted an application for their CBD extracts and isolates will be required to remove product from the UK market by 31 March 2021 or face enforcement action from local authorities, which is likely to include criminal prosecution.
Consumers have also been advised to limit their consumption of CBD to 70mg a day and those who are pregnant, breastfeeding or taking any medication should not consume CBD at all. Interestingly the Committee on Toxicity has confirmed that it has found evidence of potentially adverse health effects from the consumption of CBD products but there is a lack of scientific evidence to be able to confirm that there is a risk.
Why has this announcement been made?
In January 2019, CBD was listed as a novel food on the European Commission's novel food catalogue, despite a plethora of food products on the UK market containing CBD. There is no current approval for CBD as a novel food, meaning that all food products on the market containing CBD are unauthorised.
The Food Standards Agency had indicated that it would take proportionate enforcement action against those manufacturing and selling CBD products in the UK, but yesterday's announcement now clarifies the position.
What does business need to do?
Businesses manufacturing or selling CBD products should consider taking an immediate step to make consumers aware of the recommended daily dose and the categories of consumers who are advised not to consume CBD. This could be achieved through updated website information and shelf-edge labels in store. There is no legal requirement to positively do this (it is advisory only) but care should be taken that there are no contradictory statements.
To continue to sell CBD products or to start to sell CBD products, businesses need to take advice on making a novel food application for the particular CBD extracts and isolates they wish to use. There is a current application that is in progress but this may not be applicable to your product.
Will this be challenged?
Yes, quite possibly. The Cannabis Trade Association has been very active in the UK and Europe in arguing that CBD is not a novel food. A challenge could be mounted via judicial review but the most likely form of challenge will be in defence of a prosecution after 31 March 2021.
What is the impact of Brexit?
The novel food process is based on EU law, which continues to apply to the UK until 31 December 2020 (with a possibility of that date being extended), after which the process becomes part of retained UK law and a UK-only system of approving novel foods will take effect.
The FSA is asking businesses to submit applications to the FSA, as well as via the European portal, so that applications can "progress at pace through the UK authorisation process from 1 January 2021".