Administrative Court of Baden-Württemberg: ban order against CBD food products due to lack of specificity unlawful
The Administrative Court of Baden-Württemberg has, on appeal by the plaintiff, amended a first-instance judgment of the Administrative Court of Karlsruhe and annulled a prohibition order issued by the district of K. The authority’s clause 1 of the order, which prohibited the placing on the market of cannabidiol-containing foods within the meaning of the Novel Food Regulation, was unlawful due to lack of specificity and infringed the plaintiff’s rights. Since the legal classification of CBD products in individual cases—such as food, cosmetic, or medicinal product—is difficult, a prohibition order must clearly specify the products concerned in the operative part or reasoning. A mere exemplary reference to individual products such as mouth sprays or softgums in the reasoning of the decision is insufficient to meet the constitutional requirement of legal certainty and the protection of professional freedom. As a result of the annulment of the main administrative act, the threatened enforcement fine also ceased to have effect. More on the ruling can be found here.
Higher Regional Court of Koblenz: distribution of CBD mouth oil as a cosmetic lawful due to lack of food classification
The Higher Regional Court of Koblenz has ruled that CBD mouth oils labeled with the instruction “avoid swallowing” are, in interim relief proceedings, not to be classified as novel foods within the meaning of the Novel Food Regulation nor as functional medicinal products. The claimant failed to sufficiently demonstrate that the product constitutes a food, as dosage and usage instructions—spitting out after a 30-second exposure time—contradict an intended oral intake into the stomach. The indication of portion sizes or CBD content does not change this finding due to the direct contextual link to the instruction not to swallow. Rather, the overall presentation as a care “mouth oil” with ingredient labeling under “Ingredients” shows that the product is regarded under general market perception as a cosmetic product for oral care. Since no deliberate deception or purely artificial labeling to circumvent food regulations was proven, the distribution under the cosmetic category is not misleading. A legal assessment can be found here.
Source: German Cannabis Business Assoc
