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Cannabis regulation in Europe

When we look at the cannabis regulation (Cannabis sativa L.) and its constituents in the UK and Europe, we find that the rules are far from harmonized, even within member states of the European Union. It is also interesting to see how Europe and the US are now diverging in their attitudes toward cannabis.

As in the US, hemp produced for agricultural/industrial purposes is legal in the EU only if the hemp plant variety contains very low levels (less than 0.2%) of the psychoactive compound D9-Tetrahydrocannabinol (THC).

Like in many other regions, “new” cannabis extracts and isolates, such as cannabidiol (CBD) products, do not have an established history as a food or health supplement and therefore fall under the classification of “novel food”. As a new product, these items are unregulated (in that no regulations exist for them), and therefore, they are illegal to sell without authorization.

Cannabis regulation in the UK

In the UK, cannabis remains prohibited under the Misuse of Drugs Act (1971). As such, it is a Class B drug alongside cannabinol, cannabinol derivatives, cannabis, and cannabis resin. It is unlawful “to possess, supply, produce, import, or export this drug except under a Home Office license. It is also an offense to cultivate any plant of the genus Cannabis except under a Home Office license”.

CBD does not appear under these regulations and is therefore not a controlled drug. However, CBD products containing cannabinoids like THC would be classified as controlled. Where exemptions exist, products cannot target humans or animals, packaged in a way that gives access to the product (for recreational consumption) In addition, these products cannot contain more than 1 mg of the controlled component.

Cannabis regulation in the European Union

European countries have two main approaches in terms of the penalties they impose for cannabis offenses. The first approach (e.g., in the UK, Netherlands, Portugal), does not treat cannabis the same as other drugs, as the penalties are relative to the harm caused by that drug.

The second approach (e.g., in Germany, France, Sweden), considers all drug possession the same. However, in practice, the police or prosecutors will often distinguish between types of drugs, and as well as between personal use and supply, for example.

In the majority of EU countries, cannabis consumption will not lead to incarceration, although this is a possibility in Scandinavian countries, France, Turkey, and Hungary. However, rules are generally stricter for possession of cannabis for personal use in most countries and incarceration is possible.

In some countries though (e.g., Ireland, Spain, Portugal, Italy), in the absence of aggravating circumstances, the law does not allow imprisonment in the case of possession of small quantities of cannabis for personal use only. In Bulgaria, Croatia, the Czech Republic, Italy, Malta, Portugal, Slovenia and Spain, this approach relates to all drugs. On the other hand, in Belgium, Ireland and Luxembourg, it only applies to cannabis. The penalty is usually a monetary fine. Other countries will often take a relatively lenient view on possession of less than 5–6 grams, resulting in the issuance of a warning.

The Netherlands is an unusual example in Europe. Cultivation, supply, and personal possession of cannabis are all criminal offenses there, punishable with prison sentences according to the law. However, some municipal authorities, like Amsterdam, practice tolerance. This allows the licensing of “coffeeshops” to sell small quantities of cannabis with the aim of separating casual users from criminal drug suppliers.

Watch this 1:53 minute video about the hemp market in Europe

Problems in interpreting foodstuff exemptions and CBD

A fundamental issue for the legality of CBD Products in Europe and the US is that, technically, despite falling into the category of “foodstuff”, it should not be designed/packaged for administration by humans. In addition, it must not be a risk for health (including having potential dosage above safe levels). At present authorities have not universally agreed upon these safety levels, and nobody tests the products for their compliance to recommended limits anyway.

Although CBD products are becoming increasingly available (despite these legal problems), few legal cases exist against manufacturers. It, therefore, appears that the relative safety of CBD is producing a sense that this is a low priority for regulators and policing.

CBD as a medicine?

In comparison with the US, there is probably a greater concern in Europe for manufacturers making unwarranted health claims for CBD products. It is unlawful to sell a product falsely claiming health or medicinal properties without authorization in the EU/UK market. Even when not making this claim directly, a product can be deemed illegal if it functions in the same manner as a medicine (by having the same dosage and presentation as a clinical medicine, for example).

This is a contentious area legally and probably will become more so, as further research on CBD identifies its specific health benefits and new CBD-based medicines are approved. It is likely to happen in the next decade that newly approved drugs will closely resemble the claims of current unregulated CBD food products. As such, this situation may require much stricter monitoring and regulation of the content and marketing of CBD “food” products. 

CBD as a Novel food

It was only in 2018 that the European Novel Food Regulation (ENFR) came into force to define novel food products in the EU. These foods that people consumed rarely before 1997 or are the products of a new production method, producing a significantly changed composition, structure or nutritional value, for example.

In 2019, the EU modified its wording regarding cannabis and cannabinoids (including CBD) in its “Novel Food Catalogue”. The goal was to clarify any confusion that these products were indeed “a non-authorized novel food”. German courts and UK Food Standards Agency have more recently adopted this position, but there has not yet been any precedent in UK courts.

Summary of cannabis regulation in Europe

A quick summary of the state of cannabis regulation in Europe shows:

  • International law requires the control of cannabis plants and products.
  • Permissions may be available for medical and industrial use.
  • Cannabis-based medicines may have authorization nationally and may include:
    • THC in capsules,
    • cannabis extract as a mouth spray, and
    • dried cannabis flowers for vaporizing or making “tea”
  • No country officially authorizes cannabis smoking for medical purposes.
  • There is no harmonization of regulations among EU Member States in the laws penalizing unauthorized cannabis use or supply.
  • Some countries legally treat cannabis like other drugs, where others suggest penalties according to the drug or type of offense (e.g., personal use vs distribution).
    • The penalties available for cannabis supply vary.
  • Evidence suggests that the police generally record cannabis use offenses, rather than simply overlooking them as a ‘minor offense’.
    • In a few countries, rehabilitation treatment is available.
  • All countries’ laws punish driving under the influence of cannabis; some punish those found with traces in the body.
  • Since 2000, the trend has been to reduce the maximum penalty for use-related offenses, but there is not a clear or consistent effect of penalty changes on use rates.

National discussions have focused on changing policies to reduce penalties. Lawmakers have already rejected several proposals for full legalization in the last few years and no national government in Europe is in favor of full legalization.

The future challenges for CBD regulation in the EU/UK

A number of challenges remain for CBD products in the EU/UK.

  • Controlling the dosage in “CBD food” products can probably address the possible medicinal classification of CBD .
  • The presence of THC and other controlled substances remains a difficult issue. Low THC levels can be categorized as a contaminant, as in Italy.
  • Safety concerns remain to be thoroughly tested, particularly for long term use and accumulation of THC in the body.
  • The UK has given the CBD industry until March 31, 2021 to submit a valid novel foods application. If that does not happen, then products that exceed new safety limits for CBD content will be removed from the market. The enforcement would occur under food safety legislation. However, despite these warnings the UK Food Standards Authority is still likely to take a proportionate approach to enforcement. This approach would give due consideration to the “likelihood of real harm, the possibility of harmful effects, or the existence of reasonable (scientific) doubt about the harmfulness of a product.”

References

European Monitoring Centre for Drugs and Drug Addiction (2017) Cannabis legislation in Europe: an overview. Publications Office of the European Union, Luxembourg

Tallon MJ. Cannabis sativa L. and Its Extracts: Regulation of Cannabidiol in the European Union and United Kingdom. J Diet Suppl. 2020;17(5):503-516. doi: 10.1080/19390211.2020.1795044. PMID: 32748708

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