CBD in the post-Brexit United Kingdom

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CBD in the post-Brexit United Kingdom

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Amidst the legislative chaos surrounding the Brexit, the status of CBD products in Great Britain has become even more unclear… or has it? Read our blog posts where we break down the various regulatory regimes applicable in England, Wales, Scotland and Northern Ireland, now the Brexit dust has settled.

Is CBD Still Legal in the UK?

First off, let us state the most important: yes, as of 31 March all CBD products that were on sale prior to February 2020 remain perfectly legal to manufacture and sell in the UK – provided their THC levels are below 1mg per product required by British law.

Novel Food Conundrum

The Novel Food Regulation – a set of non-binding guidelines put in place by EU’s Committee for Plants, Animals, Food and Feed (PAFF) – has been causing a headache for the European CBD industry for a few years now. Despite having left the EU, the United Kingdom hasn’t freed itself from the Novel Food regime, the CBD products fall under. This paradox is due both to the trade deals negotiated with the EU, but mostly caused by the local regulations the UK agreed to create back when it was one of the Member States.

As the Novel Food regulations have been widely ignored by the manufacturers in the UK (because CBD edibles’ status as ‘novel’ has been being challenged’) London’s Food Standards Agency (FSA) decided said manufacturers have until 31 March to submit a novel food application if they wanted to stay on the shelves.

Does it mean the puzzle is solved? Can British CBD companies simply submit novel food application to have their products’ status updated by obtaining (or not) permit? Well, not quite – there are two exceptions to this rule.

First, it does not apply to products that hit the market after February 2020 – their manufacturers will need to remove them from the market and start from the scratch, seeking a full novel food authorisation. Second, as was the case with Brexit itself, the United Kingdom has once again proved to be not quite united, as these rules do not apply to Scotland and the Northern Ireland.

Scotland and Northern Ireland

The steps the CBD manufacturers have to take in order to comply with the Novel Food Regulation are a little more complicated in the case of the Northern Ireland and Scotland. Whilst the novel food regulations in the former country are still largely affected by the European Commission, the latter decided to put in place more strict regulations on its own, as Scotland’s autonomy extends to food safety.

Food Standards Scotland (FSS), an agency similar to the UK’s FSA, has decided to toe the line of EU’s authorization-only policy (or rather: recommendation thereof) for CBD products. In effect, in Scotland (as well as in the Northern Ireland), the CBD products will have to be taken down from shelves altogether, and their manufacturers will need to seek a full novel food authorization.

Softening the blow is the fact that the authorities in Scotland have agreed to not start checking CBD products for novel food authorization – yet. The group was due to meet with FSS officials again to discuss the matter late in March 2021.

Importing CBD into the United Kingdom

Importing CBD into the United Kingdom

As if the obligation to seek authorization or apply for a novel food status wasn’t too much for the CBD market on the British Isles, Brexit has also affected the industry by both cutting the supply chains, effectively halting the import. Here, the situation is even more chaotic, as there’s still no clarity on what paperwork will be needed to import both the CBD products as well as CBD isolate into the England after 31 March.  However, what we do know is that any products listed and that were submitted to the UK FSA by 31 March 2021, for products that were on the market by February 2020, can remain on the market if there is a submitted NF application.

Takeaways

It can be expected that the major CBD companies in England and Wales have already submitted novel food applications, and their products – at least some of them – will remain available in these two British countries. Scotland’s and Northern Ireland’s stance on CBD, on the other hand, will likely result with a prolonged period of no CBD products being available on the market, especially if the local authorities will decide to actively track and take those down.

As to the imported products, although individual products imported by customers from abroad would probably remain unaffected (except for a prolonged time at the customs), CBD companies manufacturing their product from imported CBD isolate would probably need to start manufacturing locally or brace themselves for a judicial battle.

In any case, although after the above-mentioned regulations come in life the situation is unlikely to shift dramatically, it is worth noting that both the latest updates to the Novel Food Catalogue as well as the specific local regulations stemming from it are still being contested by the hemp industry (particularly by the EIHA). This can eventually result with some of the local regulations being softened if not revoked altogether.

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