Update: Food alert for CBD as a new food and product withdrawal from the market

By Miguel Torres

Miguel Torres is a lawyer and a lecturer in International Private Law at the Law School of the University of Barcelona. He has been President of the Foreign Investment Commission of the International Union of Lawyers. He advised the company that obtained the first authorisation from the Spanish Drugs and Health Products Agency (AEMPS) to grow cannabis for research purposes.

CBD products have been marketed in the EU for a long time without having received attention from the food authorities of the different states, mainly because these products are generally well manufactured and are safe. Even though there have been no cases of poisoning or contamination detected that could pose a danger to public health, an alert had not been issued with the consequent expeditious action of the food authorities to withdraw a product from the market.

Sale of products containing cannabidiol (CBD) in Spain

According to several reports, the authorities intervened on CBD products at the end of 2018, which caused some confusion, especially since the Spanish food authorities had not issued any news of an alert related to CBD.

However, on 25 March, AECOSAN published an informative note on its website, for the first time, about the use of cannabis and cannabinoids as food: http://www.aecosan.msssi.gob.es/AECOSAN/web/noticias_y_actualizaciones/noticias/2019/caniamo.htm

It turns out that since 25 January 2019, several notifications have been made by EU states on marketing products with CBD through RASFF, the Community Rapid Alert System for Food and Animal Feed created in 1979.

When a country that is part of the network discovers a danger to health, it informs the rest of the network about the product in question and the measures taken to deal with the risk. These measures include withdrawal, recovery, confiscation or rejection of the products.

To date, 33 notifications related to CBD have been made. Of these, 13 were submitted by Sweden, six by Spain, six by Austria, five by Germany, two by Switzerland and one by Italy. Of all the notifications, only two refer to products originating in Spain.

In these cases, the mechanism planned in the network is activated and all member states are involved in carrying out an investigation and, if necessary, adopting any preventive measures deemed appropriate.

The status of the "Risk Decision" in the RASFF portal shows that some cases are "not serious". The rest are "undecided", although it can be expected that the conclusion will also be "not serious". Only the products in which THC as well as CBD were detected were classified as "serious".

The names of the CBD products investigated have not been disclosed. At the moment there are 33 notifications on the RASFF portal; so there are many products on the market that are not yet under investigation. In fact, an astonishing number of CBD products can be found on Amazon, which means that CBD is not banned on the black market, but rather it is selective based on a complaint or denouncement system.

On 18 April, Spain issued a notification about products such as biscuits and chocolates from the Netherlands containing non-authorised cannabis derivatives. It all started as a result of a police inspection carried out by the National Police Force's Citizen Security and Intervention Unit (USCI) of the Local Police and the Narcotic Drugs Unit on 25 February at a shop in Arrecife, Lanzarote on the Canary Islands, knowing that they could be selling food products containing cannabis derivatives. The facts were brought to the attention of the Lanzarote Health Area Directorate, which immobilised all of the products.

AECOSAN understood that the labelling on the biscuits was incorrect because it did not specify the type of cereal flour that the biscuits contain and the presence of a cannabis derivative, and in the case of chocolates, there was no labelling in Spanish and the presence of allergens (gluten, milk, eggs and nuts) were not translated, there was also the presence of cannabidiol as an unauthorised ingredient. In this case, the product names were revealed: Chocolate Kush Girl Scout Cookies, Ginger Kush Girl Scout Cookies (Dr Greenlove brand) and Cannabis Chocolate CBD rich Dark Chocolate with hemp seeds & hazelnut pieces (City Seeds Bank) brand.

It is a good question to consider whether the police and administrative intervention on these products was appropriate or whether the reaction was disproportionate. It seems doubtful that these products contained purified CBD as the so-called CBD oils. AECOSAN points out the incorrect labelling and even that the establishment did not have a license for the sale of food products, although the vague reference to the products containing cannabidiol indicates that perhaps it was sufficient to add CBD or hemp on the package so that it could be seen as an unauthorised product. Many cosmetics advertised with cannabis/CBD, such as those of Babaria and Sephora, are made with seed oil and this does not pose a problem, although they are not marketed as food. AECOSAN recognises in its note that foods made exclusively from seeds, such as oil, hemp protein and hemp flour, are authorised to be marketed in the European Union.

In its note, AECOSAN does not seem to take into account that the New Food Regulation provides for a transitory period until 2 January 2020 for products that had been legally marketed before 1 January 2018. It must also be remembered that the application for authorisation presented by Czech company Cannabis Pharma that would allow marketing of all similar CBD products, given the generic nature of authorisations for new foods, is still pending.