The marketing of cannabidiol (CBD) extracts as food supplements is a relatively new trend and CBD is increasingly common in the food and beverage sector (e.g., in sweets, cakes and beer). Hemp contains approximately 60 cannabinoids, including the psychotropic tetrahydrocannabinol (THC) and the non-psychotropic CBD. Although there are no long-term studies on how it affects health, experts have argued that CBD can have anxiolytic, neuroprotective, anti-psychotic, antiinflammatory, anti-spasmodic effects.
While there are signs of greater liberalization with respect to hemp use internationally, the Austrian government has resisted this trend. Under the Controlled Substances Act and the Controlled Substances Regulation only cannabis resin and cannabis inflorescence and infructescence with a THC concentration of more than 0,3 % THC qualify as narcotics. The active substance THC may be used in pharmaceuticals, whereas the use of the hemp blossom as a drug is not permitted. The other parts of hemp plants- such as seed, leaves and cannabinoids contained therein (except for THC) – do not qualify as narcotics.
In October 2018 the ministry of Labour, Social Affairs, Health and Consumer Protection published a decree1outlining its legal opinion on product regulations which prohibit CBD use in food and cosmetics. While such decrees are only internal administrative instructions, the ministry published this decree in a press release and on its website for public effect.
According to the decree products derived from the inflorescence and infructescence of certain hemp species are excluded from narcotics legislation
- if their THC-content does not exceed 0,3 %; and
- the production of narcotics in a concentration that could be misappropriated in a simple or economic manner is not possible.
The ministry considers extracts containing cannabinoid used in food (primarily in food supplements such as CBD oil) generally as novel food according to Regulation (EU) 2015/2283 and therefore not marketable, since there is no marketing authorization for such products.2 Both the Community Code relating to medicinal products3 and the Austrian Act on Medicinal Products4 distinguish whether or not a product is a medicinal product basically between medicinal products by function and medicinal products by presentation. A medicinal product by function has a significant influence on the human physiological functions by a pharmacological effect in connection with the prevention or treatment of a disease or has a medical-therapeutical benefit5 . According to the ministry the published data on the application of CBD in a recent pubmed-research are not sufficient for the assessment of a therapeutic effect. CBD therefore is not a medicinal product by function. A qualification of CBDcontaining extracts as medicinal products can be considered only if preventive, healing or remedial properties are attributed to such products (medicinal product by presentation). 6
The ministry therefore considers a marketing of food products containing CBD as not permitted.
In respect of the use of Cannabis sativa L. and its extracts in cosmetics, the ministry refers to Article 14 (1) (a) in connection with Appendix II (306) of Regulation (EC) 1223/2009 on cosmetic products. Article 14 (1) (a) prohibits the use of the substances listed in Appendix II and Appendix II lists “natural and synthetic narcotics”, which are defined as any substance listed in Schedules I and II of the Single Convention on Narcotic Drugs of 1961 which includes Cannabis and its extracts. Therefore, the ministry also considers a marketing of cannabis and its extracts in cosmetics as not permitted.
The apodictic qualification of CBD products as novel food respectively as medicinal product by presentation by the ministry is questionable.
It is true that the EU Novel Food Catalogue7 qualifies extracts of Cannabis sativa L. and derived products containing cannabinoids as novel foods as a history of consumption has not been demonstrated.
However, with regard to the hemp plant (Cannabis sativa L.) itself the catalogue states:
“In the European Union, the cultivation of Cannabis sativa L. varieties is permitted provided they are registered in the EU’s common catalogue of varieties of agricultural plants species and the THC content does not exceed 0,2 %. Some products derived from the Cannabis sativa plant or plant parts such as seeds, seed oil, hemp seed flour, defatted hemp seed have a history of consumption in the EU and therefore, are not novel. Other specific national legislation may restrict the placing on the market of this product as a food or food ingredient in some member states. Therefore, it is recommended to check with the national competent authorities.”
Contrary to the ministry’s decree Cannabis sativa L. and seeds, seed oil, hemp seed flower and defatted hemp seed are not novel. The oil obtained from the hemp plant by cold-pressing the seeds naturally contains low levels of CBD. Numerous hempand CBD-containing foods such as teas, oils and flour are not novel and therefore are not subject to the novel food regulation. They are also not medicinal products by presentation as long as no preventive, healing or remedial properties are attributed to products containing these ingredients (e.g. hemp oil or hemp seed oil derived from the hemp plant) and can be marketed as food supplements.
Also, the assessment of the use of CBD in cosmetics is questionable. Contrary to the impression created by the decree, the EU regulation on cosmetics does not contain a general prohibition on CBD use in cosmetics. Irrespective of its source, CBD per se is not listed in the schedules of the Single Convention on Narcotic Drugs, however, the schedules list cannabis and cannabis resin, extracts and tinctures. According to the convention, CBD in cosmetic products is prohibited only, if it is prepared from cannabis resin, extract or tincture.
Therefore, rather than providing legal certainty, the ministry’s decree merely reflects headlines relating to the government’s narcotics program (“prohibition of the sale of hemp seed and hemp plants” and “tightening of certain provisions in the narcotics act”).
2 There is an application to use CBD extract in food supplements pending since 2016.
3 Directive (EU) 2001/83.
4 BGBl 185/1983 as amended.
5 ECJ C-358/13; ECJ C-181/14.
6 In the absence of a marketing authorization such products may not be marketed.
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