Brexit has dominated the headlines for the last five years. Now that the UK is no longer in the EU, industries and the economy are starting to feel the effects. Here, we discuss all there is to know about the new Brexit CBD restrictions.
CBD law in the UK
First of all, let’s look at the legality of CBD in the UK.
CBD, or cannabidiol, is a compound found in the cannabis plant. CBD products are legal in the UK as long as they don’t contain tetrahydrocannabinol (THC) – the cannabinoid that gets you ‘high’.
THC, along with most other cannabinoids, is a controlled substance under the Misuse of Drugs Act 1971 (MDA). This means it’s illegal to possess, produce or distribute a product that contains THC.
To be legal, a CBD product must contain less than 1mg of THC per pack. Any more than this and it would be considered a controlled substance under the MDA.
Novel food regulations and Brexit
Under these regulations, foods or food ingredients that don’t have a history of consumption prior to May 1997 must be assessed and authorised before they can be marketed.
In February 2020, the Food Standards Agency (FSA) gave UK companies a deadline of 31 March 2021. By then, companies must have a validated novel food application in place for each of their products. Only products linked to such an application would be allowed to remain on the shelves from 1 April 2021.
The FSA recently updated this rule to include products linked to a novel food application that has been submitted (rather than validated) by 31 March 2021. Products can stay on the shelves during the process of validation.
After submitting a novel food application, validation usually takes around 2-3 months. Validation means the applicant has submitted all the necessary information, and the application can move onto the authorisation stage. Full authorisation can take over a year.
Products that weren’t on sale before the FSA’s initial announcement (13 February 2020) must have full novel food authorisation before coming to market.
However, Brexit has complicated novel food regulations for CBD, with Scotland’s pro-EU politics and the Northern Ireland-Republic of Ireland (ROI) border issue complicating the situation.
This has resulted in three different regulatory regimes across the UK. The FSA’s deadline applies to companies in England and Wales, but there are different rules for Scotland and Northern Ireland.
What are the rules in Scotland?
Food safety in Scotland is governed by Food Standards Scotland (FSS), rather than the FSA. FSS has rejected the FSA’s 31 March deadline system and instead opted to follow the EU’s authorisation-only policy.
This means that in Scotland, CBD products must have full novel food authorisation before they can be sold. Currently, there are no CBD products with novel food authorisation.
In December 2020, FSS clarified its position. They acknowledged that there are CBD products already on the market, many of which are still seeking novel food authorisation.
Because of this, FSS is encouraging a proportionate approach to enforcement, taking into account a company’s commitment to gaining legal compliance.
Despite not aligning with the FSA’s approach of allowing products without full novel food authorisation to stay on the shelves, FSS is working closely with the FSA on the validation and authorisation of novel food applications. Companies only need to submit their applications to the FSA, with no need to submit to FSS separately.
What are the rules in Northern Ireland?
Novel food regulations for Northern Ireland have been complicated by the issue of the post-Brexit border between the UK and EU.
The Northern Ireland Protocol was negotiated by the UK and EU to avoid a hard border between Northern Ireland and the ROI. It enables goods to cross between the two countries with no new checks.
Due to the protocol, Northern Ireland has effectively remained in the EU’s single market for goods. This allows goods to move between Northern Ireland and the EU, via the ROI, as they did pre-Brexit, without new checks, tariffs, or paperwork.
This means that companies seeking novel food authorisation for products on the Northern Ireland market need to continue to follow EU rules and the EU’s authorisation procedures.
As a result, the FSA’s 31 March deadline doesn’t apply to products in Northern Ireland. Like Scotland, products need full novel food authorisation before they can be legally marketed for sale.
How is Brexit affecting trade in the CBD market?
The UK’s Brexit trade agreement allows for free trade with the EU, with no tariffs or quotas introduced.
However, Brexit has ended the free movement of goods between the UK and the EU. This is a blow to UK CBD companies. Most companies rely on CBD imported from EU countries that allow hemp growers to use the plant’s flowers. In the UK, hemp flowers are a controlled substance.
As the UK is no longer required to follow EU regulations on product standards, companies are facing new customs checks and more paperwork. This can make shipping goods – including CBD products – much more complicated.
These new difficulties can create extra costs and shipping delays, putting a strain on supply chain relationships. Many CBD companies are already experiencing issues; some shipments being held up at customs or turned away at the border because they don’t have the correct documents.
The danger is that these new challenges may force UK companies to drop their European CBD suppliers and look elsewhere.
Could Brexit bring benefits for the CBD industry?
No longer bound by EU regulations, some believe that Brexit may unlock new opportunities for the UK CBD industry. For example, it may make it possible to develop a CBD sector similar to Switzerland’s, which is thriving.
This is a result of an amendment to the Swiss Narcotics Act in 2011 allowing cannabis with an average THC content <1% to be legally grown and sold. This was followed by a boom in low-THC cannabis retailers and interest in CBD products.
However, the UK currently has stricter rules on the cultivation and processing of hemp than many EU countries, so it remains to be seen whether it will follow suit.