As reported by Hemp Industry Daily, the executive branch of the European Union is changing its stance on how European countries should vote on the December World Health Organization’s cannabis scheduling changes.
This comes shortly after last week’s announcement from the European Union Commission. In the announcement, the European Commission stated that its preliminary view on CBD extracted from flowering tops of Cannabis plants should be considered a narcotic under a 1961 United Nations’ treaty.
In the event the European Commission’s stance is adopted, hemp-derived CBD would no longer be considered a food product. This would make CBD fall outside of the novel food regulation and could lead to CBD products being banned from the European Union market.
The Novel Food Classification
In January of 2019, the European Union Novel Foods Catalogue was updated to include hemp-derived cannabinoids, including CBD. This novel food designation meant that manufactured needed to have their CBD edibles and supplement products evaluated for consumer safety, and to also seek permission from European Union authorities before placing these products on the market.
Since the catalogue update, European Union authorities have received more than 50 applications for novel food authorization of hemp-derived products — most of which contain CBD.
At this time, review of these applications has been suspended. Affected novel food applications should have received a letter containing the European Union’s new preliminary stance on extracted CBD on July 3-10. The letter also invited comments from those affected by the preliminary view through early September. At this time, it is unknown how soon after the September deadline applicants can expect a response to their applications.
The United Kingdom Still Holds Novel Food Status
According to the United Kingdom’s Food Standards Agency, their Home Office has not changed its viewpoint that CBD extracts themselves are considered narcotics. The office will continue with its current plans of accepting novel food applications starting in January of 2021 after the Brexit transition period ends. Until that point, however, the European Commission remains the sole route for formal submissions.
Confusion on the Timing
According to Paris-based attorney Van Keymeulen, the timing of this position is puzzling.
“What is very surprising is the timing,” said Van Keymeulen. “We’ve had novel food status for two years, and after interacting with so many member states and authorities, and updating the [Novel Food] Catalog several times, what they are doing now is totally backpedaling.”
“No one really knows why the European Union wants to ban hemp extracts at all – which would mean the definitive end of the hemp food industry except for hemp seeds,” said Kai-Friedrich Niermann, an attorney based in Germany who specializes in CBD and cannabis regulations. “That can’t be the solution and that can’t be the future.”
Niermann, a member of the European Industrial Hemp Association, said he believes that the EIHA’s lobbying efforts will persuade the commission to take a stance more favorable to the hemp industry.Quoted from Hemp Industry Daily
The United Nation’s Stance
The 53 member stations of the United Nation’s Commission on Narcotic Drugs will hold a vote later this year to decide whether to revise how cannabis and other related substances should be scheduled in two international narcotics conventions.
In December of 2019, the European Commission issued a proposal for a united position based on World Health Organization scheduling recommendations. In order to vote, European Uninion member states would need to support three of the six cannabis-related changes, as proposed.
When it comes to the six changes, there were two specificially that the European Commission did not support:
Recommendation 5.4: Removing extracts and tinctures of cannabis from Schedule I of the 1961 convention.
Recommendation 5.5: Adding a footnote saying that “preparations containing predominantly cannabidiol and not more than 0.2% of delta-9 tetrahydrocannabinol are not under international control.”
On these two issues, the European Commission proposed that EU countries “take the position that the recommendation should not be put to vote and further assessment by WHO should be requested.”
When it came to these two recommendations, the European Commission stated that European Union countries should “take the position that the recommendation should no be put to vote and further assessment by the WHO should be requested.”
While the European Union itself cannot vote in December, 13 of the 53 countries casting ballets are able to vote. As the European Union wants a united stance, it is to be expected that they will vote identically. These countries include:
- The Czech Republic
- The Netherlands
There is Possibility That CBD Could Be Categorized as a Narcotic Before December
Due to a court case in France, it’s possible that the European market’s CBD fate may not lay with the European Commission. In the court case, two employees from Kavavape were convicted of a criminal offense by a Marseille court on the grounds that the CBD oil in their product, which they were marketing, was extracted from the whole hemp plant. French law prohibits extracting from a whole hemp plant, including the leaves and flowers.
In May, an adviser to the Court of Justice of the European Union said France’s ban on the marketing of hemp-derived CBD products contradicts EU law on the free movement of goods. This is because hemp-derived CBD is not classified as a narcotic drug (at this time), and is therefore protected under the European Union’s free movement principle.
The Court of Justice is expected to rule on this case as early as September.
“While such judgment may not directly prevent the Commission to maintain its conservative view, it would be very hard to reconcile this position—which would effectively shut down the EU market for CBD food products—with the principles set forth in the AG’s opinion,” Van Keymeulen said.
“As I do not believe the Commission’s position is sustainable in the long run, and this position will become increasingly difficult to defend the more scientific evidence on CBD becomes available, I would generally recommend companies to continue preparing their Novel Food applications, and in particular continue the studies that are necessary to prove 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 await the CJEU judgment and the vote of the CND in December—hoping the vote will not be postponed once again—to get a better sense of the direction ahead.”