European Court of Justice: CBD not a narcotic

Manufacturers of CBD products have every reason to be cheerful because the European Court of Justice (ECJ) recently ruled: CBD not a narcotic! This decision does not only apply to CBD oils and extracts but also to CBD cosmetic products.

How did this decision come about?
The starting point of this legal dispute was criminal proceedings against a French company that specialized in CBD containing liquids for e-cigarettes. The company’s founders were sentenced to 18 and 15 months’ imprisonment with additional fines of over 10,000 euros. The reason for this judgment?The company was convicted by the criminal court on the grounds that the CBD oil they produce is extracted from the entire hemp plant, including its leaves and flowers, with French law restricting commercial use of hemp to the fibers and seeds only. The key question here was whether the national regulations were in particular compatible with the principles of the free movement of goods.

In this case, the ECJ held the principles of the free movement of goods applicable and the ECJ announced that one EU member state may not prohibit the sale of cannabidiol (CBD) produced in another member state if it is made from the whole cannabis sativa plant and is not only obtained from their fibers and seeds.The court was also unable to find that CBD had psychotropic effects and harmful effects on human health based on scientific data and ruled: CBD not a narcotic! Here the court referred to the opinion of the WHO, which, according to the UN Convention of 1961 on Narcotic Drugs, decided that CBD could not be classified as a drug in the sense of the international narcotics convention.

What does this mean for manufacturers and consumers?
Many industry associations within Europe welcome this judgment because it eliminates existing uncertainties as to whether CBD products are to be classified as harmful and illegal. Furthermore, it paves the way for new regulations and requirements for quality standards on the part of the manufacturer in order to offer the consumer the best possible safety.It is to be expected that authorities, science and trade will develop new quality standards in order to establish more transparency and quality in the existing market.

Can CBD be sold as a dietary supplement?
Although CBD products are available worldwide, the distribution and sale of products containing CBD is still in a gray area. The reason for this is that novel foods are tested for safety and approved before they are marketed.In the case of products containing hemp, it must be ensured that these are not foods that are “novel” within the meaning of Regulation (EU) 2015/2283 (Novel Food Regulation).

For cannabidiol (CBD), no significant consumption before May 15, 1997 could be proven and for this reason, CBD is assessed as novel and therefore requires approval according to the Novel Food Regulation. Since CBD has not yet been approved as a new type of food, such products are not yet marketable.

CBD as an aromatic oil?
Due to the pending clarification as described above, whether or not CBD products can be sold as dietary supplements or not, many manufacturers have decided to classify their CBD oils as “aromatic oils” in order to circumvent the Novel Food Regulation. This may be a solution in the short term but for the consumer it is misleading and also not an ideal solution in the long term.

What’s the next step?
This ‘back-and-forth” about novel food regulation is being carried out on all levels, at national and European level, and manufacturers are hoping for a uniform solution soon.In 2019 , the German government declared that foods containing parts of the hemp plant are not novel foods. In turn, the government sees it differently with isolated individual substances such as cannabinoids or extracts enriched with cannabinoids, because these could not be recognized as marketable for this reason.

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