The role of CBD before the changes
Many cannabis entrepreneurs in Europe have marketed their products as food. The EU Novel Foods Regulation has long defined the role of CBD in Europe.
A novel food is a product intended for human consumption for which there is no significant documentation that it has been widely used in the territory of the EU Member States before 1997.
CBD products were only covered by this regulation in 2018, when it was decided to reform the regulation. As a result, the updated Novel Foods Regulation concluded that there was insufficient documentation on the use of Cannabis Sativa L. as a nutrient. The flowers and leaves of the hemp plant were also not specifically mentioned in this revised regulation.
European Industrial Hemp Association
EIHA, the European Industrial Hemp Association, is an international organisation that seeks to promote the interests of industrial cannabis entrepreneurs in Europe. EIHA proposed to the European Union that CBD be added to the European CosIng database. The proposal included the removal of restrictions on Cannabis Sativa L. and the addition of three new INCI (International Nomenclature Cosmetic Ingredient) names to the list. The suggested names to be added were Cannabis Sativa Leaf Extract, Cannabis Sativa Leaf/Stem Extract and Cannabis Sativa Root Extract. EIHA submitted its proposal in late 2019.
The case Kanavape
The issue that has significantly affected the CBD's position is the case you may have heard about, the Kanavape case. Two French businessmen were indicted for importing and marketing CBD oil for use in electronic cigarettes. The CBD oil was produced from legal hemp plants in the Czech Republic. The oil was extracted from the entire plant biomass, which also contained the leaves and flowers of the cannabis plant.
The charge was based on French law, according to which only products made from hemp fibres and seeds were legal. The convicts appealed to another court, which was specifically tasked with examining whether there was a conflict between national and EU law in this case. The European Court of Justice was asked to give a preliminary ruling on the case.
The judgment in C-663/18 states that EU law, and in particular the rules on the free movement of goods between EU Member States (including Norway and Switzerland), preclude such national legislation.
The Court notes that the provisions on the free movement of goods within the European Union (Articles 34 and 36 of the Treaty on the Functioning of the European Union) apply because the CBD at issue here cannot be considered a "drug" since CBD does not appear to have psychotropic effects or to cause other adverse effects on human health.
The Court of Justice then ruled that the provisions on the free movement of goods were contrary to local law. The marketing ban on CBD is a measure prohibited by Article 34 TFEU which has an equivalent effect on quantitative restrictions on imports.
The protection of public health and the assessment of the measures necessary to achieve it are matters for the national court, but it is for the national court to assess the available scientific information to ensure that the alleged real risk to public health is not based solely on hypothetical considerations.
A decision to ban the marketing of CBD, which significantly restricts trade in products legally manufactured and marketed in other Member States, would only be possible if the risk to public health appeared sufficiently substantiated.
CBD legalized in cosmetics
The EIHA proposal and the ruling in Case C-663/18 went a long way towards clarifying the role of CBD in legislation when the EU decided to legalise its use in cosmetics in all its Member States from February 2021.
CBD can be found in the CosIng database under the name Cannabidiol - Derived from cannabis extract, tincture or resin. CBD products, such as CBD oil, can be legally marketed with the following properties: antioxidant, anti-sebum, skin protection and skin care.
You can now find several types of CBD cosmetic products: day and night creams, massage oils, serums, anti-aging creams, soaps and deodorants.
We invite you to consult your doctor for the best use of your CBD.