The UK Food Standards Agency will soon state how they will respond to the EU’s classification of CBD as a novel food.
It is unlikely that CBD products will be seized because the industry is so profitable. Post-Brexit, the FSA has greater freedom to turn the situation to their political and financial advantage. Instead of seizing products, it is likely that strict conditions will be imposed on current retailers to make all products compliant. If this happens, not all businesses will survive the shift.
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What Is the Novel Food Ruling?
In January 2019, the European Commission declared that there was no proof that CBD had a significant history of consumption before May 1997. According to the Novel Food Regulations, this meant that it should be classed as a ‘novel food’ and should not be sold without evaluation and authorisation.
The EU then advised the food authorities in all member states to restrict the sale of CBD until the proper procedures were in place. This authorisation could cost each business at least £250,000 and take more than a year to complete.
This news was devastating to the millions of UK CBD customers and thousands of small businesses. The UK CBD industry is one that grew up when big business was looking the other way. It is made up of individuals, families and companies. Now their livelihoods are at stake.
The Response
“Clearly, it’s not because of any genuine concern about safety.” CannaPro 2020
There have been many responses to this since the news broke, but the first was that several groups attempted to prove the consumption of CBD before May 1997. The European Industrial Hemp Association collated a large amount of evidence that tracked its use back as far as the 12th Century. However, all attempts have been refused on the grounds of ‘not enough evidence’.
Currently, in the UK, the consequences of this ruling rest with the FSA. They have made it clear that they support the classification of CBD as a novel food but don’t have any safety concerns.
Lawyers advising the Cannabis Trades Association have said that the European Commission’s ruling has left the decision of whether to enforce it up to individual member states, a position is now secure following our exit from the EU.
“We have received legal advice that the EU ruling on this issue has effectively left the decision about whether or not to enforce with the individual states across the EU. Currently, there is a mixed picture of how this is being handled across the Union. As an example, in Germany the approach seems to be strict, but their Courts have decided that the Commission’s Novel Food Catalogue is only a guide. And in any case, the UK will soon be leaving the EU which we hope will give even greater freedom to the UK authorities on how to interpret the situation.”
How Will the Food Standards Authority Move Forward?
While we wait for confirmation of the approach the FSA will take, they have promised a moderate response:
“We are committed to finding a proportionate way forward by working with local authorities, businesses and consumers to clarify how to achieve compliance in the marketplace in a proportionate manner.”
It seems clear that the FSA will require the ruling to be enforced and that CBD products will need to go through authorisation. The remaining question is, how will they choose to transition current retailers and products to the new status. At some point, they are expected to instruct local authorities on how they should enforce the ruling.
The Current Situation
The longer retailers and customers must wait for the FSA’s response, the more enraged the industry leaders get. Despite their outrage and promise of lobbying campaigns and legal action, they are most conspicuously busy using the situation to drum up new members.
The leading players at the top are trade associations, the CTA and CannaPro followed by the Centre for Medical Cannabis. Between them, they represent virtually all UK suppliers and are engaged in a heated battle with each other as well as the FSA. Each, in turn, has claimed special arrangements with the FSA that would ensure more security for their members.
CannaPro
CannaPro vigorously opposes any enforcing of the novel foods ruling. They don’t acknowledge that any genuine safety concerns should exist around CBD oils that are made to reasonable standards:
“The assertion that cannabis extracts are ‘novel’ is patently false as is the idea that there are any food safety implications in low THC extracts, providing that the cultivation, extraction and processing is carried out to reasonable standards.”
They also indicate that the real purpose of this lies behind government ties to big business:
“There’s no purpose in this novel foods initiative except for the bureaucracy to take control of the market but of course it will benefit big business most of all.”
The Cannabis Trades Association
The CTA has perhaps been the most vocal in their response. They immediately lodged their opinion and set out a campaign to lobby the FSA:
“Enforcing the provisions of Novel Foods would be a draconian move and be a devastating blow for millions of UK consumers. For that reason, the Association is launching an intensive and systematic programme of lobbying on this issue.”
Until the FSA set out their plans, it will be difficult to say if any of these actions have had any effect despite the FSA saying that they will collaborate with industry groups to find the best way forward. However, the CTA is doing a good job convincing as many people as possible that they will steer a safe path through this mess:
“The CTA will reach a determination of the novel status without any admission of guilt until the determination is made.”
They also indicate that they have an understanding with the FSA. It is unlikely that, at this point, the FSA would make any commitment to favour the approach of only one part of the industry.
Despite this, the CTA claims that they have received confirmation from them:
“Their support for the route to compliance that the CTA is undertaking on behalf of its members: a submission under Article 4 of the novel food regulations.”
The Centre for Medical Cannabis
The CMC, backed by multi-millionaire Paul Birch, is the newest group to the scene and have quickly taken an authoritative that they don’t yet deserve. They first gained attention by releasing a report on dishonesty and inaccuracy in the marketing, production and labelling of UK CBD products.
While it was an interesting piece of work, CannaPro and Clear have branded it a “cheap marketing stunt” in which they:
“Show its products are OK, but others are fake, illegal or a rip-off.”
Following on from this inauspicious start they have now declared their support for the Novel Food ruling. Simultaneously they have launched a new trade body called the Association for the Cannabinoid Industry (ACI). As with other groups, they claim that membership with them will afford a better degree of protection from what will come.
What Does This Mean for the Industry?
The actual ruling appears to be least of the issues; it’s stirred up a hornet’s nest with billions at stake. Despite the claims of industry bodies, it seems unlikely that any lobbying will influence the outcome of the FSA’s decision and the infighting probably plays delightfully into the hands of those big businesses that CannaPro warn against.
Now, in post-Brexit UK, it seems inevitable that whatever the outcome, it will severely damage small businesses and leave the industry vulnerable to new players. It is doubtful that products will be removed from shelves, but retailers are sure to face significant red tape and convoluted hoops before they can achieve authorised status. Some businesses will survive, and others will fall by the wayside.
Over the next few years, we may see the rise of larger companies in the place of those who don’t make it through authorisation. Also, the trade bodies are likely to be called on to remove the authorisation of companies who don’t meet a new stricter set of industry guidelines. To secure the future for their members, CannaPro are already prepared for this course of action:
“We would verify all certified businesses’ existing products as compliant with legal and quality standards and these would be excluded from any enforcement action.”
This would affect the many companies whose products, while made to high safety standards, slightly exceed the 1mg per container legal limit. Now is the time for all CBD companies to tighten up legal procedures and check certificates of analysis for excess THC.
What a Novel Food Compliant Industry Means for Customers
There are many customers, myself included, who would welcome a regulated CBD industry. However, this is not what is happening here. While some companies may be required to reach higher standards, many more will lose their footing in the market and disappear completely.
We will still have access to good-quality CBD, but we could face a narrower choice and higher prices.
The fear of THC has stoked this fire just enough to allow governments to hold small businesses to ransom. Whatever the outcome of the FSA’s deliberation, it will have a profound effect on those who make their living in the industry.