The KanaVape Ruling Opens The Way For Cannabidiol To Be Considered A Novel Food

In a ground-breaking verdict delivered on Thursday 20 November 2020, the European Court of Justice (CJEU) ruled that CBD may not be considered as a narcotic drug within the scope of the UN’s Single Convention on Narcotic Drugs. This decision is a significant milestone for the European CBD industry, with surprising implications for the UK market.

The KanaVape Case

Known as the “KanaVape Case”, Case C-663/18 was referred to the CJEU by the Aix-en-Provence appeal court in October 2018.

The case revolved around KanaVape’s brand owners Antonin Cohen and Sébastien Béguerie, against whom French authorities took legal action in 2014. The authorities charged them with importing CBD oil from the Czech Republic, which was made from the whole hemp plant, including buds and stems.

While in the Czech Republic it is legal to produce CBD oil using all parts of the hemp plant, France allows only the use of seeds and fibres. Under French law, products derived from other parts of the plant are viewed as narcotics. 

At the time of the appeal of the initial condemnation, the French Court of Appeal asked the CJEU if buying and selling CBD oil that can be lawfully sold in one Member State of the EU but is considered an illegal narcotic in another, is an unlawful restriction of free movement rules within the EU.

The KanaVape Ruling

The decision of the CJEU was widely expected since the Advocate General of the CJEU, Evgeni Tanchev, issued his opinion in May 2020, suggesting that CBD is not a narcotic drug and thus should circulate freely within the EU.

In its decision, the European Court of Justice (CJEU) confirmed that CBD is not a narcotic drug. The rationale was that cannabinoid oil does not appear to have any “psychotropic” or “harmful effect on human health.”

The crucial question was whether CBD made from the whole hemp plant was a drug under the UN Single Convention on Narcotic Drugs (1961) and Convention on Psychotropic Substances (1971) definitions. The court ruled that:

“Since CBD does not contain a psychoactive ingredient in the current state of scientific knowledge […], it would be contrary to the purpose and general spirit of the Single Convention to include it under the definition of ‘drugs’ within the meaning of that Convention as a cannabis extract.”

Based on that, the CJEU determined that France’s national ban on marketing hemp-derived CBD products violated EU law on the free movement of goods within countries of the Union. With this decision, CBD is covered by the EU’s free movement provision. 

Implications for the European CBD market

The decision was met with satisfaction and relief from the European CBD industry, especially as the European Commission is soon expected to review legislation on hemp. Since a decision by the CJEU cannot be ignored, it is unlikely that the European Commission will maintain their current stance that CBD is a narcotic after the European Court’s assessment on the matter.

As members of the CBD industry note, our knowledge and understanding of cannabis, THC, and CBD have significantly evolved since the 1961 UN Convention.

The KanaVape ruling opens the European market to CBD products, allowing for many more uses of CBD, lifting import and export restrictions, and making the culture of hemp even more profitable. In the following years, we expect to see the CBD market grow exponentially.

Novel Food applications

Since CBD oil is not a drug and a narcotic, companies that want to market it should apply for assessment as “novel food” to the EFSA.

Novel Food applications that have been brought to EFSA were until now dismissed, based on the European Commission’s previous stance that CBD made from the hemp plant (not synthetic) is a narcotic drug. However, in December 2020, the European Commission acknowledged the ruling and confirmed that CBD qualifies as food and that the EFSA authorisation process for cannabidiol as a novel food ingredient may now resume.

Since CBD is established as a novel food, there will be no restrictions in using cannabidiol as an ingredient in foods and beverages. Expect to soon see juices and waters containing natural CBD, food supplements, and, of course, e-vapes.

Natural vs Synthetic CBD

Currently, many products that contain cannabinoids (such as cosmetics) contain in fact synthetic cannabinoids, which have traditionally been allowed.

Based on the KanaVape ruling, natural CBD oil should be allowed for use in the same way as synthetic CBD, since research suggests that natural CBD has similar effects to synthetic CBD.

Free trade of CBD products in the EU

Current restrictions on imports and exports of CBD products should soon stop existing within the EU, if the European Commission takes into account the KanaVape ruling. According to the ruling, unless a product is a narcotic drug, there should be no restrictions to free movement within the EU bloc.

If cannabidiol from countries such as the Czech Republic, where production from the whole plant is legal, is freely marketed to all EU countries, even those such as France where CBD oil production is allowed from grains and fibres only, it can be expected that production restrictions will soon be lifted. This is because the industry will push for lifting restrictions that put a country’s CBD industry at a commercial disadvantage in a liberated market.

Under the new circumstances, it will be difficult for any state authorities to justify putting in place restrictive national frameworks for the production of cannabinoid oil.

How does the KanaVape decision affect the UK?

Although the UK is no longer part of the European Union, there are many reasons why decisions in the EU will still be taken under consideration by the British legal system.

First, the UK will continue having important commercial relations with the EU, and will continue importing from and exporting to the EU.

Second, many current UK laws have been inherited from the EU legal framework and have not been changed after Brexit. Any new changes in EU laws and practices can, therefore, become a precedent for the UK and influence how CBD is grown and perceived in the UK.

Since the KanaVape decision was issued before the official end of the Brexit transition period (December 31, 2020), it is binding for the UK, too, until there is an overall change of the legal framework of CBD in the UK.

Current law

Under the current UK law (Misuse of Drugs Regulations 2001 ‘MDR’), growing hemp in the UK can be tricky. Extracts other than those from seeds and mature stalks (fibre) are considered as ‘controlled parts’ and thus scheduled substances (illicit drugs).

Industrial hemp is low in levels of THC (Tetrahydrocannabinol), the primary psychoactive compound in cannabis. Despite this fact, the MDR restricts access to hemp flowers—the part of hemp that is richest in CBD. Instead, CBD producers buy hemp flowers or CBD oil from abroad.

Gaining local access to a rich CBD source such as hemp flowers would significantly impact CBD yield and increase the profits of UK hemp farmers and CBD producers alike.

The Novel Food application process

Since the CJEU ruling is binding for the UK too, according to current laws inherited from the EU, cannabidiol should now be considered as a novel food.

As a result, CBD producers can now ask for CBD products to be authorized as novel foods by the Food Standards Agency (FSA). Recent guidelines by the FSA require British companies to apply for novel food status by March 31, 2021.

However, the need to go through the FSA Novel Food application has been criticized as too onerous for small companies. There is no indication at the moment that the guidance could change in the near future.

The UK law can still impose restrictions on the free sale of CBD based on safety grounds. For example, it has already could set maximum levels of THC to avoid psychotropic or toxic effects. Such claims would be based on scientific research.

What are Novel Foods?

Novel foods are foods that have not been widely consumed by people in the UK (or EU) before May 1997 and have no ‘history of consumption.’

Examples of novel foods include:

• New foods (such as phytosterols used in cholesterol-reducing spreads);
• Traditional foods eaten elsewhere in the world (chia seeds, baobab, etc.);
• Foods produced from new processes. For example, bread treated with ultraviolet light to increase the level of vitamin D.

A new era for the CBD industry?

The KanaVape decision raises new questions, such as whether the Novel Food application is still relevant after the ruling, or how the UN will classify CBD in 2021.

However, the decision is shifting the EU and UK CBD markets in more than one way. The industry has now a powerful argument to press for changes at various levels—and we can expect significant changes in the CBD market, where new products and brands are bound to emerge soon.

UK hemp producers will also see their crops increase in value since they can now use hemp buds and flowers as raw materials. At the same time, countries that had a “competitive advantage” due to their less restrictive legal framework will now see competition rise.

The UK is one of the largest CBD markets in Europe, with a climate that benefits hemp culture and a long tradition for innovation. Could this be the beginning of a new CBD era for the UK? The next few months will show.