The coronavirus (“COVID-19”) pandemic has driven online consumer shopping in the wellbeing sector in a bid to find products that will protect against, and help manage the symptoms of, COVID-19. Food products that claim benefits such as increased auto-immunity and stress relief have seen huge spikes in sales. This is good news for food business operators (“FBOs”) including those in the cannabidiol (“CBD”) arena.
CBD products are increasingly used by consumers seeking alternatives to modern pharmaceuticals to treat a range of ailments, such as: anxiety, chronic pain, inflammation, sleep problems and depression. The three main CBD products within the European (“EU”) market are ingestibles, topicals and vaping, with food products and oils accounting for the majority of sales. There are already a wide variety of CBD food products available, including confectionery, bakery products and drinks.
No delay to UK novel foods deadline for CBD products
Nevertheless, the UK Food Standards Authority (“FSA”) recently confirmed in a meeting with the Association for the Cannabinoid Industry that despite the impact of COVID-19, there will be no delay to the deadline for FBOs to submit novel foods applications for CBD products.
In January 2019, CBD was added to the EU Novel Foods Catalogue, meaning all food products containing of CBD require pre-market authorisation to be placed on the EU market. Enforcement of the Novel Food guidelines for CBD has not been consistent across the EU, with Spain and Austria removing all CBD products from the shelves, but Germany and the UK still allowing the products to be sold.
As discussed in our previous article, in response to the inconsistent treatment of CBD products in the EU, the FSA set the industry a deadline of 31 March 2021 to submit valid novel food applications. Businesses can continue to sell their existing CBD products during this time provided they are not incorrectly labelled or unsafe to eat and do not contain substances that fall under Misuse of Drugs legislation (i.e. THC). After this deadline, only products which have submitted a valid application will be allowed to remain on the market.
The decision by the FSA not to delay the deadline may be influenced by increased concerns around the risks that come from an expanding, but to some extent unregulated, industry. Recent studies of the CBD sector have identified inaccuracies with product ingredients and in some cases, the prohibited psychoactive compound THC has been found within products, highlighting the need to establish recognised levels of quality control. Growing public concern around safety and efficacy can therefore be addressed through the novel foods process.
Where does this leave CBD food products?
By giving CBD manufacturers over a year to submit a novel foods application, the FSA are providing a path to compliance, whilst still allowing consumers to continue to purchase products in the interim.
At the end of April 2020, it was reported that Mile High Labs submitted an EU novel foods dossier to the European Food Safety Authority (“EFSA”) for its CBD isolate. The business hopes that compliance will help move CBD further into the FCMG mainstream. It will be interesting to see how many others have made the same choice – and indeed how long it will take for the applications to be assessed.
Neither the FSA nor EFSA have indicated how COVID-19 will impact on time frames for processing any novel food applications. Before the pandemic, the process would be well over a year and it seems likely that applications will now take longer to process – although for the UK market, this may prove a key opportunity for the FSA to take a different approach when it becomes responsible for novel food applications at the end of the Brexit transition period.
For FBOs grappling with these choices, the dilemma remains whether to invest the time and expense now to prepare and submit an application to both EFSA and the FSA (for the UK market) but face potential rejection, or to wait (however long) and see how the front runners fare - at the risk of being left behind.
Co-authored by Luke Kingston.
 This applies in England, Wales and Northern Ireland only. Novel food regulation in Scotland is covered by Food Standards Scotland.