According to the CBD Decree, enacted by the Austrian Ministry of Health, marketing cosmetics containing cannabis or cannabis extracts is prohibited in Austria. This view seems outdated considering recent developments at the European level. Indeed, a European Court of Justice decision in November 2020 and the inclusion of naturally derived cannabidiol (CBD) in the CosIng (Cosmetic Ingredients) database earlier this year have left the door for CBD cosmetics wide open.
Is CBD a narcotic? The Legal situation in the EU to date
Until recently, the 1961 UN Single Convention on Narcotic Drugs placed cannabis and cannabis resin in the highest danger class of narcotic drugs – in the same category as heroin, for example. “Cannabis” is understood to mean the flower or fruit stalks of the cannabis plant from which resin has not been extracted. Among other things, a ban on CBD extracts in food and cosmetic products was derived from this convention.
In its decision C-663/18 of 19 November 2020, however, the European Court of Justice (ECJ) did not classify naturally extracted cannabidiol (CBD) as a narcotic, thus explicitly contradicting the United Nations’ previous classification: none of the available scientific data suggested that the cannabis extract CBD had any psychotropic effects or harmful effects on human health. Accordingly, naturally extracted CBD cannot be understood as a narcotic in the sense of the UN Single Convention.
A paradigm shift at the EU and UN levels
In December 2020, in the wake of the ECJ ruling, the United Nations Commission on Narcotic Drugs downgraded cannabis and cannabis resin from the highest to the lowest danger class of narcotic substances. In doing so it followed a recommendation from the World Health Organisation (WHO).
The EU Commission also reacted, not only resuming its examination of novel food applications, which seeks approval to use CBD in food, but also adjusting its CosIng database. CosIng is an EU Commission database of substances and ingredients as well as their purposes and functions in cosmetic products. The database contains all substances suggested for use in cosmetics since the adoption of the Cosmetics Directive in 1976 (Directive 76/768/EEC) and includes all ingredients listed in the EU Cosmetics Regulation (Regulation (EC) No 1223/2009).
Up to now, the CosIng database explicitly only permitted synthetically obtained CBD for use in cosmetics. The EU Commission has now added a new entry for “cannabidiol from cannabis extract, tincture or resin” to the CosIng database, listed as functioning as an antioxidant and skin protectant, amongst other things.
However, the CosIng database is not legally binding; it only serves as guidance for EU Member States and industry. The decision about whether cosmetic products meet the regulatory requirements is still made by the authorities in EU Member States. National narcotic drug regulations and their THC limits must be observed for products containing CBD. In Austria, for example, only products made from certain commercial hemp varieties that do not exceed a THC content of 0.3% before, during, and after the production process are exempt from narcotics legislation.
Is the Austrian legal interpretation outdated?
According to a decree issued by the Ministry of Health in October 2018, the marketing of cosmetic products containing cannabis or cannabis extracts is not permitted in Austria. The decree is based on the EU Cosmetics Regulation, which prohibits the use of natural and synthetic narcotics in cosmetics. According to the relevant annex to the Cosmetics Regulation, this means the narcotic substances listed in Annexes I and II of the UN Single Convention. Although cannabis extracts appear there, according to the ECJ ruling, however, naturally extracted CBD is not to be regarded as a narcotic in the sense of this convention.
In view of this, the ministerial decree from 2018 appears to be outdated regarding cosmetics. This has since been taken up in a parliamentary question (4829/J). The Federal Minister responsible answered that the EU Commission had already been asked to clarify the extent to which the classification as addictive substances would change as a result of the ECJ ruling in the field of cosmetics. It remains to be seen how the EU Commission will answer and whether the decree will be amended in the future.
Moreover, unlike a law or an ordinance, the ministerial decree is not directly binding, but only represents an internal instruction from a superior to a subordinate authority. However, since the subordinate authorities are still bound by it, it can be assumed that they will continue to prohibit the marketing of cosmetics containing CBD. However, an administrative fine or a marketing ban could be challenged because the regulation is contrary to EU law. This would offer an opportunity to overturn the decree – unloved, of course, by the CBD industry – regarding cosmetics.