The Court of Justice of the EU confirmed last week in Case C-663/18 that cannabidiol (CBD) is not a narcotic drug. This Ruling will prevent lawfully produced cosmetics and foods containing CBD from being hindered by national narcotics legislation in other Member States. However, the use of CBD in foods will only become allowed when a novel food authorization is obtained.
The Court was asked to look at legal provisions in France according to which only the fiber and seeds of hemp may be put to commercial use and thus prohibiting the marketing of an electronic cigarette containing CBD lawfully produced in another Member State and extracted from the Cannabis sativa plant in its entirety with a THC content not exceeding 0.2%.
Such ban on lawfully produced goods, according to the Court, would not be allowed under the provisions on the free movement of goods within the European Union (Articles 34 and 36 TFEU). In this context, the Court also confirmed that while it is true that a literal interpretation of the UN Single Convention on Narcotic Drugs might lead to CBD being classified as a drug, âit would be contrary to the purpose and general spirit of the Single Convention to include it under the definition of âdrugsâ within the meaning of that convention as a cannabis extract.â
CBD in cosmetic products
The Ruling removes uncertainties for the use of CBD in cosmetic products. The list of prohibited substances in Regulation (EC) No 1223/2009 on cosmetic products includes âNarcotics, natural and synthetic: All substances listed in Tables I and II of the single Convention on narcotic drugs signed in New York on 30 March 1961â. The Ruling confirms that this entry does not include CBD. Therefore, Member States must in principle accept lawfully produced cosmetic products containing CBD, with the following exceptions:
(i) Member States could still justify a ban based on one of the grounds of public interest laid down in Article 36 TFEU, such as the objective of protecting public health. However, they would need to make sure a risk to public health is sufficiently established and not based on purely hypothetical considerations.
(ii) While CBD is not a narcotic, it could still be prohibited in cosmetics if it meets the definition of âmedicinal productâ in Directive 2001/83/EC, i.e. if it exerts a pharmacological, immunological or metabolic action or is presented as having medicinal properties.
(iii) Products with a THC content exceeding 0.2% could still be classified as narcotics.
CBD in foods
The Ruling will prevent lawfully produced food and food supplements containing CBD and a THC content not exceeding 0.2% from being hindered by national narcotics legislation in other Member States. However, the use of CBD will only become allowed when a novel food authorization is obtained for this ingredient.
In 2019, the European Commission and Member States confirmed that they had not been able to find a history of consumption in foods before May 15, 1997 for CBD. Therefore, they considered that CBD is a novel food and requires a pre-market approval under Regulation (EU) 2015/2283.
So far, several companies have submitted novel applications for synthetic CBD, but the European Commission decided in July 2020 to postpone applications in light of a potential classification of CBD as a narcotic substance. Now that the CJEU has ruled out this status, the assessments will continue.
No novel food applications for CBD obtained from Cannabis sativa have been submitted so far. Therefore, the possibility to lawfully market foods containing natural CBD will remain out of reach for the coming years.