CBD is Still a Novel Food in Germany

On March 3, 2020, the European Industrial Hemp Association (EIHA) announced that Germany would be backing initiatives to lift cannabidiol (CBD) products from the novel foods list. The cannabis media space quickly swelled with relevant headlines, celebrating a new milestone for the industry, with people claiming that CBD is no longer a novel food in Germany.

Related: How Germany’s Hemp Association Fights Cannabis Criminalisation

There was just one problem. None of it was true.


A ‘groundbreaking’ success for CBD

The celebrations quickly came to a halt once Germany’s Bundesamt für Verbraucherschutz und Lebensmittelsicherheit (BVL), the federal agency for consumer protection and food safety, said the EIHA announcement was ‘incomprehensible’.

On March 5, the agency further confirmed that despite the EIHA’s reports, CBD would remain on the novel foods list. An excerpt translated from German to English reads as follows:

‘The statement of the EIHA is surprising and incomprehensible. For hemp extracts or products made from them that contain cannabinoids (e.g. CBD) no sufficient evidence has yet been provided by the EIHA, nor by other economic operators, to demonstrate significant consumption in the EU. Therefore these products will continue to be considered as novel foods throughout the EU.’

Significant consumption is the technical measure of whether a consumer good should or should not be included in the novel foods regulation. Any item that fails to prove ‘significant consumption’ requires regulatory approval before being sold to consumers. Currently, CBD falls into this category.

This classification has been a major pain point for the cannabis industry. Although CBD-based products are all the rage, the lack of clear regulations and firm rulings has created a thriving grey market. Fortunately, few products have resulted in serious harm; consumers are nonetheless taking on much more risk than they should be.

Thus, it is inevitable that authorities around Europe prepare for a crackdown on unauthorised manufacturers. Already, this looks to be unfolding in the United Kingdom.

On February 13, 2020, The Food Standards Agency (FSA) announced that relevant companies must ‘submit valid novel food authorisation applications’ by March 31, 2021. Failing to comply would result in a firm’s CBD products being ‘taken off the shelves’, said a spokesperson for the FSA. The agency also advised an upper limit of 70 mg per day for the majority of the population, and it said that ‘vulnerable groups’ should steer clear until it can be determined ‘that CBD is safe’.

In this context, the EIHA’s mashing of words and viral confusion hits cannabis enthusiasts and entrepreneurs hard. What looked to be a major windfall was, in the end, no news at all.

This is because, on the official EIHA LinkedIn page, the association celebrated a ‘groundbreaking success’ after alleged ‘ongoing’ discussions with another branch of the federal German government, the Federal Ministry of Food and Agriculture (BMEL).


German CBD community confused

Unpacking the exchange between the EIHA and various governmental bodies offers a better understanding as to how the latest confusion unfolded.

On March 20, 2019, the BVL affirmed that it was ‘not aware of any case in which cannabidiol (CBD) could be found in foodstuffs, i.e. also in food supplements.’

It is still slightly unclear but, based on this statement, the EIHA was inclined to assume that the BVL had included all hemp products as currently unmarketable without a novel foods application.

For the uninitiated, industrial hemp products may include a minimal amount of CBD, if any at all. Typically, industrial hemp is cultivated for manufacturing textiles and commercial fibres. This is in stark contrast to the hemp that is cultivated for the explicit purpose of extracting CBD concentrates. The EIHA accused the BVL of failing to make this critical distinction and putting both the CBD and hemp industries at risk.

Following the BVL’s statement, the EIHA demanded that the agency update its communication to reflect the differences between these two types of plants and compounds. It wrote:

‘Insofar as the BVL does not distinguish in its own online publication between “natural cannabinoids contained in the full spectrum of the hemp plant” on the one hand and “isolates” or “enrichments” of cannabinoids on the other hand, this blanket statement by the BVL of 20 March 2019 is factually incorrect and misleading.’

Alongside this semantic distinction, the EIHA had also pursued a response from both the European Commission and the BMEL.

The association cited the differences mentioned above, as well as the fact that hemp consumption has been ongoing long before 1997. Significant consumption of foodstuffs before this year has been excluded from the novel foods regulation, according to official documentation.

The timeline of events, especially when laid out in the EIHA’s initial brief, has been difficult to understand.

It is for this reason, and the confused uproar from the cannabis community, that the association has posted another brief on March 9, 2020. It is in this post that the EIHA identified a clearer timeline of events.

On March 20, 2019, the BVL published its statements that failed to make a clear distinction between the ‘full-spectrum CBD’ derived from industrial hemp and CBD isolates. The EIHA then contacted the BVL on April 11, 2019, demanding it make this clarification.

Following a lack of response from the BVL, the EIHA then contacted the BMEL on May 8, 2019. The EIHA also wrote that the BVL allegedly conceded its position, but it is difficult to understand what exactly this means.

The BVL has not updated the earlier March 20, 2019, statements either.

Strain Insider has reached out to the Managing Director of EIHA, Lorenza Romanese, for comment on this subject. This article will be updated once her comments have been received.

In the latest March 9, 2020, brief the EIHA also explained that on July 25, 2019, the German federal government announced that:

‘The opinions of the European Commission, which confirmed that foods containing parts of the hemp plant are not novel foods, remain valid. However, it cannot be concluded from them that all products of the hemp plant, including for example isolated individual substances such as cannabinoids or extracts enriched with cannabinoids, would be marketable as foodstuffs.’

More of the same, but it is unclear whether this announcement is directly related to EIHA’s advocacy efforts. A common theme throughout the association’s swath of briefs has been this lack of clarity.

On November 19, 2019, the EIHA allegedly earned a response from the BMEL regarding the BVL’s ‘blanket’ classification of hemp products. The response, according to EIHA, reads as follows:

‘[According] to the information available to the Commission, there is still no evidence of significant consumption of cannabidiol (CBD) enriched hemp extracts in the EU before 15 May 1997. On the contrary, according to available information, such products have only recently become available on the market. According to the unanimous opinion of the European Commission and the EU Member States, hemp extracts enriched with CBD are thus foodstuffs requiring authorisation, provided they are not narcotics or medicinal products.’

The above quote was cited in the EIHA’s March 3, 2020, brief.

The end of the EIHA’s brief takes the above as circumstantial evidence that the federal government has sided with the association. It claims that the BMEL’s response ‘clearly endorsed the view of the EIHA’ that the BVL should have made a distinction on its online publications.

It is unclear whether the BMEL has made the above statement in the context of EIHA’s advocacy efforts, however. The EIHA nonetheless concludes that ‘this is an important success for its pan-European members and for the hemp food industry operating in the German market.

It is in this leap that the EIHA also began celebrations.

In the March 3, 2020, brief the president of the EIHA reported that ‘hemp food products made from traditionally produced extracts with the natural full spectrum of the cannabinoids contained in the hemp plant are not novel foods. For the German hemp food industry, this statement by the government and the ministry is an important milestone.’

Following these confusing statements, those which insinuated ‘an important milestone’ had been reached, jubilee across the cannabis space erupted. A cannabis-specific publication, The Extract, cited the EIHA’s announcement and wrote:

Having cannabidiol removed from [the novel foods list] is a huge win for the burgeoning industry. It in effect grants greater access to the substance for both consumers and start-up companies dealing with hemp products.’

There may not be a specific industry player at fault but, from the above analysis, the association’s communication has been far from clear. Ultimately, German cannabis enthusiasts, as well as the rest of the space, are unsure of what to think.

Related: How Far is Germany from Legalising Marijuana?

One thing, however, is for certain: CBD is still a novel food in Germany.

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