▷ Legal status of the sale of products with CBD

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Legal situation of the marketing of CBD products

In recent years, the demand and supply of Cannabidiol (CBD) products, extracted from the Cannabis Sativa L plant, increased.

Products containing CBD are marketed as food supplements. However, we must not forget that with the Spanish legislation in force, food supplements can only be vitamins or minerals, not plants.

CBD in the European Union

In some EU member states, plants are considered food supplements and if the product is made in the European Union, the Spanish authorities cannot prevent the marketing in the EU of a food supplement made from medicinal plants. The judgment of the Court of Justice of the European Union of March 5, 2009 in case C-88/07 (Commission v Kingdom of Spain) concerning the free movement of goods and products made from plants legally manufactured or marketed as food supplements or dietetic products in other Member States specified this.

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➕ CBD under the Vienna Convention

CBD is a substance obtained by extracting cannabis flowers or other parts of the plant, but the flowers contain the highest percentage. CBD is not a psychotropic substance and is therefore not included in the 1971 Vienna Convention on Psychotropic Substances, just like the tetrahydrocannabinol (THC), which is also present in cannabis flowers. However, since CBD requires cannabis flowers, it should be borne in mind that cannabis flowers are considered “narcotic” and therefore strictly subject to administrative supervision.

According to the interpretation of the 1961 Convention on Narcotic Drugs, it is clear that flower extractions from the cannabis plant, regardless of their THC percentage, whether male or female, are subject to surveillance, even if the extraction is intended to obtain CBD (uncontrolled substance) and not THC (controlled substance). The underlying point is that extraction can be used to obtain both types of substances.

Marketing of CBD in Spain

In Spain, the cultivation of cannabis, regardless of its THC percentage, intended for the production of flowers for the extraction of any cannabinoid is subject to prior authorization. of the Spanish Agency for Medicines and Health Products (AEMPS).

CBD has been marketed for years in different forms: gift, souvenir, collector’s item, cosmetic, food supplement and recently the drug (Epidiolex), these last two methods are obviously suitable for human consumption and are subject to stricter health regulations.

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▶ CBD as a dietary supplement

The companies that market it (or have marketed it) as a dietary supplement are the ones that can offer the most security. As noted above, these products are required by law to meet very important requirements in order to be fit for human consumption. For example, the product must come from an organically grown plant that is free of heavy metals because in Spain, the authorizations to cultivate hemp for human consumption are not given if it is not an ecological culture, the non-organic fields of hemp are used for fibers or other necessities not intended for human consumption. Another legal obligation is to comply with the label, since there are administrative penalties for non-compliance with the label / content. Each product with its label must be registered in HEALTH to have control of the product and its traceability.

In this legal framework, or rather in the absence of this one, products containing CBD have been manufactured and marketed in Spain, and neither their manufacture, nor their marketing, nor their consumption is illegal, as they do not contain any controlled psychotropic substances.

✌ What has changed then?

What has changed then? We can speak of an “illegalization”, somewhat absurd, because if the WHO recently made a recommendation strengthening the safety of CBD extracts, on the other hand, it banned its use as a dietary supplement. But it was only banned as a SUPPLEMENTARY FEED, which is how it is usually bought and consumed.

Directive 2002/46 / EC of the European Parliament (transposed into our legal order by Royal Decree 1487/2009 amending Royal Decree 130/2018), defines food supplements as: ”Food products intended to supplement the normal diet and consisting of concentrated sources of nutrients (NUTRIENT: vitamins, minerals, amino acids, fatty acids, etc.) or other substances having a nutritional or physiological effect, in a single form or in combination, marketed in dosage form, namely capsules, cachets, capsules, pills and other similar forms, sachets of powders, ampoules, liquids, dropper bottles and other similar forms of liquids and powders to be taken in small unit quantities ; ”.

⚒ Distribution ban

Well, just a few weeks ago theAECOSAN (Spanish Agency for Consumption, Food Security and Nutrition) communicated to regional delegations the ban on the distribution of all dietary supplements containing CBD or cannabidiol as long as the European Union has not decided on the issue according to the guidelines of the EFSA (European Food Safety Authority), an agency responsible at European level for regulating everything relating to food, among others food supplements. We must remember that CBD is an untaxed product, meaning it is NOT ILLEGAL.

TheEFSA communicated to all member countries of the European Union, through its corresponding agency, AECOSAN in Spain, immobilization of all products qualified as FOOD SUPPLEMENTS containing CBD. AECOSAN, through the Health Departments of the various Autonomous Communities, has communicated to the companies in charge of its production or distribution that they are paralyzing until Europe resolves the issue. Hence, the activity of the police visiting warehouses and laboratories, and removing stored goods. In summary, the Spanish companies concerned should communicate the withdrawal of these products from all stores where they are offered for sale as food supplements. In this sense, EFSA bases its decision on the qualification of CBD as “New food” without any regulations.

This does not mean that it is definitively banned, only until Europe regulates it. We don’t know how long it may take, but hopefully it won’t be much, because, as we say, this situation is only one of the consequences of the European Parliament resolution of last June (2018/0000 (RSP)) on the use of cannabis for therapeutic purposes, to which we refer you, where, among other things, it was proposed, by way of example, to the Commission:

The need for the Commission and national authorities to make a clear distinction between medicinal cannabis and other applications of this plant ; calls on the Commission and the Member States to tackle regulatory and financial obstacles to scientific research on the use of cannabis for therapeutic purposes;

Calls on the Commission to develop a comprehensive strategy aimed at ensuring the highest standards in research, development, authorization, marketing and pharmacovigilance, as well as to prevent the excessive or abusive use of cannabis-based medicines; stresses the need to standardize and unify products containing these medicines;

Calls on Member States to ensure a sufficient availability of safe and controlled cannabis for therapeutic purposes to meet real needs, whether produced locally in Member States or imported;

⚠️ Conclusion:

It is therefore to be hoped that, in a short time, we will have a specific regulations in the matter which will definitively clarify the sector, and that we hope that it will be progressive and will put end of current limitations resulting from the lack of regulation, especially for products made with Cannabidiol (CBD). But it can also happen that the regulation ultimately aims to consider Cannabidiol, as a medicine and not as a food product

Alan Martínez Benito

Alan Martínez Benito

CEO of Pev Grow, expert grower with over 20 years of experience.
In constant struggle for the regulation of cannabis, mainly in the medical field.
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