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Hemp in Flux: The European Union’s Winding Road to Regulation

September 22, 2020

The European Commission continues to waiver in deciding how it will treat products containing hemp-derived cannabidiol (“CBD”) in the European Union, leaving some hemp companies in flux about the long-term legality of their operations. 

As in the rest of the world, European consumer demand for CBD products has risen significantly in recent years. In many European countries (much like the United States), the consumer market for CBD products has sped forward while legislators and rule makers have attempted, with varying degrees of success, to keep pace.  Generally, most European countries have provided some form of legal access to CBD under certain legal conditions (e.g., a threshold of 0.2% THC in industrial hemp sourced for extract) even if those parameters have differed from nation to nation. Stable regulation of CBD products for safe human consumption, however, has remained a moving target across the continent. 

In January 2019, the European Commission caused widespread confusion in this dynamic when it included CBD in its Novel Food Catalogue, a listing of foods deemed not widely consumed in the European Union prior to May 15, 1997.  In accordance with this classification, CBD producers were instructed to follow the required application protocols for Novel Foods, which are subject to pre-market authorization processes. In particular, this would require the submission of a “dossier” that accounts for factors relating mostly to the product’s consumer safety.   

While European nations reacted in various and differing ways to CBD’s Novel Foods listing, the classification has had at least some consequence for hemp policies of major European countries. This is true even though the European Commission’s Novel Foods policy is not binding. Although no longer a European Union member state, the United Kingdom’s Food Safety Authority has allowed until March 31, 2021, for the submission of Novel Foods applications for authorization of CBD products being sold in the UK, after which deadline, non-compliant products risk enforcement action. Other countries have gone another direction altogether, mandating that CBD products be taken off the shelves on an immediate basis and until granted Novel Foods authorization. In Austria, by way of example, CBD product seizures have been reported.  

But several months after declaring that CBD is a Novel Food — a move the hemp industry is still, collectively, adapting to — in July of 2020, the European Commission partially departed from the course and adopted the new position that CBD may actually be considered a narcotic if derived from the cannabis plant or flowers. In accordance with this stance, and purportedly to explore this question, the European Commission paused consideration of CBD-related Novel Foods applications. 

For any given hemp business with operations in Europe, the European Commission’s winding evolution on how best to regulate hemp-derived CBD presents an uncertain regulatory environment and ever more questions than clear answers. Fundamentally, there is an open question as to why the European Commission has now decided that hemp-derived CBD can only belong to the categories of Novel Food or Narcotics. And as this conversation continues at the European Commission, it remains to be seen how, or if, particularly European nations will reflect the European Commission’s shift within their own domestic policies. 

In this state of flux, we will continue to monitor developments regarding the European Commission’s Novel Foods policy, the domestic hemp policies of European countries, and the European hemp industry more broadly. 

The views and opinions expressed in the article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.

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