- The global CBD market is expected to reach a value of 23.6 billion US dollars.
- In a report published in December 2017, the WHO stated that CBD is not addictive and ruled out harmful effects on health.
- In July the European Commission announced its preliminary view that CBD extracted from the flowers of Cannabis sativa L. should be considered a narcotic, which could lead to a ban on the EU market.
In recent years one of the most fashionable substances has been the talk of the town: CBD. It is a non-psychoactive cannabis compound with scientifically proven benefits, which has led to its use in all kinds of products, from pharmaceuticals and cosmetics to food supplements. Studies on CBD also show its effectiveness in treating asthma, arthritis and epilepsy. In December 2017 the WHO published a report stating that CBD is not addictive and ruling out harmful effects on health. According to a report published early this year by the financial consultancy ‘Grand View Research‘, the global CBD market was expected to reach a value of 23.6 billion US dollars within the next five years. In Europe alone, the CBD market would grow by 400%, according to Brightfield Group, a leading consumer insights and market research firm for the CBD and cannabis industries. However, despite this positive view of the substance and the business opportunities of the emerging CBD industry, in July the European Commission announced its preliminary position that CBD extracted from the flowers of Cannabis sativa L. should be considered a narcotic under the 1961 United Nations treaty. If the Commission formally adopted this new position, hemp-derived CBD could no longer be treated as a novel food and would fall outside the EU’s novel food regulation, so it could be banned from the EU market. The EU Novel Food Catalogue was updated in January 2019 to include hemp-derived cannabinoids, including CBD. This meant manufacturers had to assess the consumer safety of CBD supplements and edibles and apply for permission from the EU authorities to market them. 
The United Kingdom keeps CBD’s novel food status The UK Food Standards Agency (FSA) has said that the Home Office has not changed its view that CBD extracts in themselves are not considered controlled drugs. In line with previous plans, the FSA will start accepting novel food applications from January 2021, once the Brexit transition period ends, the agency’s communications officer Lisa Nelson told Hemp Industry Daily. “The European Commission remains the route for formal submissions until then,” Nelson said.
Legal uncertainty
While the Commission’s position of “treating CBD as a narcotic” is not surprising in itself, “it is extremely puzzling why they have put this position forward now,” said Eveline Van Keymeulen, a Paris-based lawyer at Allen & Overy. “What is very surprising is the timing,” Van Keymeulen said. “We’ve had novel food status for two years, and after engaging with so many Member States and authorities and updating the [novel food] catalogue several times, what they are doing now is a complete U-turn.” “Nobody really knows why the European Union wants to ban hemp extracts, which would mean the definitive end of the hemp food industry, except for hemp seeds,” said Kai-Friedrich Niermann, a Germany-based lawyer specialising in CBD and cannabis regulation. “That cannot be the solution and that cannot be the future.” Niermann, a member of the European Industrial Hemp Association, said he believes the Association’s efforts will persuade the Commission to adopt a position more favourable to the hemp industry.
What is the European Union’s position?
Later this year, the 53 member states of the UN Commission on Narcotic Drugs (CND) will vote on whether to change the way cannabis and related substances are scheduled under two international drug conventions. In December 2019 the European Commission issued a proposal for a common position on the WHO scheduling recommendations, stating that EU Member States eligible to vote at the CND should support three of the six cannabis-related changes. The WHO recommendations the Commission did not support include two specifically concerning CBD:
- Recommendation 5.4: delete extracts and tinctures of cannabis from Schedule I of the 1961 Convention.
- Recommendation 5.5: add a footnote stating that “preparations containing predominantly cannabidiol and not more than 0.2 percent of delta-9-tetrahydrocannabinol are not under international control”.
On these two points, the European Commission proposed that EU countries “take the position that the recommendation should not be put to a vote and that a further assessment by the WHO should be requested”. It now appears that the Commission’s position on all six WHO recommendations is under review. Asked whether the Commission’s December 2019 proposals were still valid, a Commission spokesperson told Hemp Industry Daily: “The European Commission is currently working on a proposal for a Union position, to be adopted by the Council, ahead of the vote in December.” The European Union as a bloc has observer status at the CND but cannot vote. “The Union position … is to be expressed by the Member States that will be members of the CND in December 2020, acting jointly in the interest of the Union within the CND,” the spokesperson said. When the CND votes in December, the following EU Member States will be among the voting countries:
- Austria.
- Belgium.
- Croatia.
- Czech Republic.
- France.
- Germany.
- Hungary.
- Italy.
- Netherlands.
- Poland.
- Spain.
- Sweden.
Ahead of the vote, the CND scheduled a series of meetings to consult on the scheduling changes proposed by the WHO. Recommendations 5.4 and 5.5 were discussed at a virtual meeting on 24 and 25 June. During that meeting, most of the EU member countries present remained silent.
A decisive court ruling
The fate of CBD on the European market may depend not on the European Commission but on a critical court ruling due before the end of the year. The so-called Kanavape case arose from a dispute in France over a company’s marketing of a CBD vape product whose contents were imported from the Czech Republic. Two Kanavape executives were convicted of a criminal offence by a Marseille court on the grounds that the CBD oil in their product was extracted from the whole hemp plant, including the leaves and flowers, which French law prohibited. In May, an Advocate General of the Court of Justice of the European Union said that France’s ban on marketing hemp-derived CBD products contradicts EU law on the free movement of goods. Crucially, the Advocate General based his non-binding opinion on the understanding that hemp-derived CBD is not classified as a narcotic and is therefore protected by the EU principle of free movement. The EU’s highest court will deliver its final judgment on the Kanavape case and the legality of France’s ban on hemp-derived CBD on 19 November. “While such a judgment would not directly prevent the Commission from maintaining its conservative view, it would be very difficult to reconcile with that position, which would effectively close the EU market to CBD food products,” Van Keymeulen said. “As I don’t think the Commission’s position is sustainable in the long term, and it will become increasingly difficult to defend as more scientific evidence on CBD becomes available, I would generally advise companies to continue preparing their novel food applications, and in particular to continue the studies needed to demonstrate the safety of CBD in food products,” she said. “If companies have not yet started the application process and want to err on the side of caution, they may want to wait for the CJEU judgment and the CND vote in December, hoping the vote is not postponed once again, to get a better sense of the direction ahead.” Update: on 19 November 2020 the CJEU ruled that a Member State cannot ban the marketing of CBD lawfully produced in another Member State from the whole hemp plant, and in December 2020 the Commission dropped its view that CBD should be treated as a narcotic.
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