A recent article in the Guardian described cannabidiol (‘CBD’) as “2019’s avocado toast”. Such is its increasing popularity that the market is estimated to be worth £1 billion by 2025, and the number of CBD consumers doubled from 2017-2018. Some have described the sale of CBD products as being akin to the Wild West but is this all now to change?
What is CBD?
CBD oil, also known as cannabis oil, is a derivative of the cannabis plant made by mixing liquid hemp with products like olive oil. Unlike other components of cannabis, CBD has extremely low levels of the psychoactive element tetrahydrocannabinol (‘THC’), and so is considered safer for human consumption. It is the THC in CBD that can make the user “high”.
There is a general consensus that CBD may act as a pain relief, assist anxiety and combat nausea. It is currently prescribed by the NHS to patients suffering from muscle spasms due to MS and those experiencing side effects of chemotherapy such as nausea. Further trials are being carried out to discover if CBD may have a positive effect upon glaucoma, cancer pains and some side effects of HIV and Aids.
CBD oil is currently available in the UK market not only in its pure form, but also as an ingredient in food, infused in skincare, in vape liquid and even in animal treats. Additionally, from 2018 CBD has been used in prescription medication to treat the side effects of chemotherapy, MS and childhood epilepsy.
The Legal Standpoint
THC is a controlled substance under the Misuse of Drugs Act 1971. It is a criminal offence to supply, possess, or sell a controlled substance.
It is a common misconception that the CBD product itself must contain less than 0.2% THC. In fact it is the source plant which is relevant. The plant can be grown with high THC content or low. When derived from a compliant plant, the actual THC content of the CBD product should contain nil or trace (less than 0.01%)THC.
The European Union has recently categorised CBD food products as novel foods for the purposes of the EU Novel Food Catalogue.
Novel foods are foods which have not been widely consumed by people in the EU before May 1997.
The Catalogue is a way of recording decisions on novel food status. The Catalogue itself has no legal status but it is used as a tool by the European Commission to show the decisions it makes on novel food status and it is these decisions that have legal status.
The reclassification has been accepted by the Food Standards Agency (FSA) in the UK. This means that before food containing any amount of CBD can be legally marketed in the UK, it must have a pre-market safety assessment and authorisation.
To date, a number of applications have been made but none have yet been approved by the FSA.
Enforcement has been light to but this does not make the sale of the product lawful.
Food Standards Agency Statement February 2020
The FSA made a dramatic intervention on 13 February 2020 stating as follows:
- Businesses need to submit, and have fully validated, novel food authorisation applications by 31 March 2021. After this date, only products for which the FSA has a valid application will be allowed to remain on the market.
- Local Authorities have been advised that businesses can continue to sell their existing CBD products during this time, provided they are not incorrectly labelled, are not unsafe and do not contain substances that fall under drugs legislation.
- No new CBD extracts or isolates should be sold until they have the necessary authorisation.
The deadline applies in England, Wales and Northern Ireland. Novel foods regulations in Scotland are covered by Food Standards Scotland.
The requirement to ensure that even before the March 2021 deadline products are correctly labelled, are safe and do not contain controlled substances sets a high bar for retailers.
Testing of CBD products on the market has revealed varying amounts of CBD and THC ie different to the amounts claimed on the packaging. There is currently no harmonisation of analytical testing and results can vary across different laboratories and testing methods Ingredients are sensitive to light, temperature and pressure. For example, from the moment the CBD is extracted, it degrades. By the time it is processed into a finished product the CBD content may have diminished.
It will be extremely difficult for retailers to verify the THC content of CBD products. They cannot rely on the packaging. There are numerous labs available offering THC testing but the retailer would need to be satisfied that the lab used to verify its products can be relied upon.
The Dangers of False Advertising
NHS guidance on CBD warns users of an array of possible side effects, from hallucinations to fatigue, however perhaps the greatest danger is the risk of inadvertently consuming a more dangerous substance. Many consumers purchase CBD over the internet where, given a lack of regulation and enforcement, there is no certainty that the product received is the one being advertised. An American study in 2017 of 84 samples of CBD discovered that only 26 products contained the stated level of CBD, and 18 had higher THC levels than was claimed.
The main concern of health bodies is that products may contain illegal levels of THC, putting the user at risk of psychosis and addiction. There have been multiple cases, both in the UK and abroad, of consumers being provided with a synthetic cannaboid known as ‘spice’. This highly dangerous substance resulted in the hospitalisation of nine young people in Manchester this year after they purchased what they believed to be cannabis vape liquid. There is a particular concern of the effect that consumption of THC may have on the development of on children’s brains.
A Move to Increased Regulation?
Some of the major concerns of CBD relate to a lack of regulation. It is a common industry trend that as a market increases, so does the potential for unscrupulous suppliers to take advantage of unsuspecting consumers. CMC has called for the industry to regulate itself, but others suggest a more comprehensive regulatory system. A survey by CMC found that CBD users’ main concerns related to clearer labelling, user advice and increased domestic supply. The UK could choose to follow the example of other countries, such as Canada’s Cannabis Act 2018, which introduced a regulated market for non-medical cannabis. Whilst there is no indication of a move to legalise cannabis in the UK, this example could be adapted to create a more open, regulated CBD market. Given preferences for domestic products, an overhaul of the industry could involve the promotion of controlled, domestic CBD growth.
CBD is coming but the regulators have now shown that they are catching up with the market. Enforcement is now likely both before and after the March 2021 deadline. Retailers should take advice if they intend to continue selling CBD products. Are they certain that what they are selling is lawful? That it will not harm the consumer? Failure to act promptly can result in prosecution for the supply, possession or sale of drugs. The implications of any such conviction could be huge. The trade has now been warned!