Not approved and still on the market? The latest on CBD in food

Cannabidiol (CBD) is extracted from the hemp plant. More and more products containing CBD are appearing on the market, think CBD oil or drinks. According to the Novel Food Catalogue, CBD is not yet approved as a novel food. How is it possible that products containing CBD are still being sold on the market?

CBD is one of the cannabinoids extracted from the hemp plant. Other cannabinoids include cannabinol (CBN), cannabigerol (CBG) and tetrahydrocannabinol (THC). In November 2020, the European Court ruled that CBD is not considered a "narcotic" because it is an extract. In addition, CBD does not contain a psychoactive substance. This is in contrast to THC, a substance that allows you to get high. So with CBD, you don't get high.

Status CBD as a new food product

So CBD is not a narcotic, but the safe use of CBD has not yet been demonstrated. Because of this, CBD is classified as a novel food. CBD can only be lawfully marketed by approval from the European Commission. The Novel Food Catalogue tracks the recent status of CBD. Currently, CBD is still listed as an unapproved novel food in Regulation (EU) 2015/2283. This means that an application has been submitted to assess CBD as a novel food using the European Food Safety Authority's (EFSA) risk assessment. The deadline for the risk assessment is the end of April. In case of a positive EFSA opinion, it may take several months until the Union list of novel foods in Implementing Regulation (EU) 2017/2470 is expanded to include the novel food CBD.

Sale of CBD

Thus, CBD has not yet been approved as a novel food. Therefore, it is not allowed to market foods with CBD. Nevertheless, we see many foods with CBD being sold on both the European and Dutch markets. CBD now falls into a gray area. On the one hand, the European procedure to designate CBD as a novel food is ongoing. Only with this approval may CBD be used in foods. On the other hand, many European countries have drug laws that include CBD, such as the Opium Act in the Netherlands. Thus, in the Netherlands CBD may be traded under the condition that it does not contain more than 0.05% THC and no health claims are made on the label. This applies to CBD oil, for example.

Enforcement NVWA

The use of CBD is increasingly being extended to other foods, such as sweets and drinks. The main rule remains that CBD is not yet an approved novel food and producers are not allowed to market CBD in the Netherlands. The Netherlands Food and Consumer Product Safety Authority (NVWA) can take enforcement action, however, the NVWA has indicated that the Food Catalogue is used as a guideline and is not legally binding. Looking at the NVWA's intervention policy, it can be concluded that in practice the NVWA will take less enforcement action, since the use of CBD in food is not considered dangerous to health.