FSA updates CBD Novel Foods criteria

England and Wales

The Food Standards Agency ("FSA") has announced that the criteria of CBD which can remain on sale from 1 April 2021 has been updated to encompass a wider remit of products.

Food business operators ("FBOs") must continue to submit novel food applications before the 31 March 2021 deadline, commented on in further detail here. However, the FSA has confirmed that this deadline is now for submission of an application, rather than the date by which the application has to be validated. Previously, only products which were on sale as at 13 February 2020 and were linked to an application which had been validated by the deadline date were to be allowed to remain on sale. Now, CBD products can remain on sale from 1 April 2021 provided:

  • they were on sale on 13 February 2020;

  • they are linked to an application submitted before 31 March 2021; and

  • the application is subsequently validated.

Local authorities, who are the enforcement authority in respect of novel food CBD products, are alert to this change. The reason for the update appears to be due to a back-log of applications required to be processed for validation by the FSA.

The FSA also announced that it intends to publish a list of products linked with applications which:

  • did not meet the legal requirements required to be satisfied in order for the application to be validated; but

  • set out sufficiently robust plans to demonstrate a commitment to delivering the remaining information required (this will include evidence of plans to complete the risk assessment process, with a clear deadline for submission of the outstanding information).

This, along with the change to the deadline, appears to reflect that the regulator is taking a pragmatic approach to providing a path to compliance, whilst allowing CBD products to be placed on the market in the interim. The Association for the Cannabinoid Industry has stated that it welcomes the update.

FBOs which have not yet submitted their novel food application should do so as soon as possible. It is highlighted that validation is not the same as authorisation, and there is no guarantee that a validated application will be authorised, and so each application must complete the comprehensive risk analysis process. Existing CBD products can continue to be sold in the meantime, provided:

  • they are not incorrectly labelled;

  • they are not unsafe to eat; and

  • do not contain substances that fall under drugs legislation.