The position of CBD products on the European Union market has not always been very clear and changes in legislation have caused confusion among consumers. However, the legislation has now been clarified and the use of the CBD in cosmetics is legal in the European Union.
The role of the CBD before the changes
Many cannabis entrepreneurs in Europe have marketed their products as foods. The European Union's Novel Food Regulation has long defined the role of the CBD in Europe.
Novel food means a product intended for human consumption for which there is no significant documentation that it has been used extensively in the territory of the EU Member States before 1997.
CBD products were not covered by this regulation until in 2018 when it was decided to reform the regulation. As a result, the updated Novel Food Regulation concluded that there was insufficient documentation on the use of Cannabis Sativa L. as a nutrient. The flowers and leaves of the hemp plant were also not specifically mentioned in this revised regulation.
European Industrial Hemp Association
EIHA, the European Industrial Hemp Association, is an international organization that seeks to promote the interests of industrial cannabis entrepreneurs in Europe. EIHA proposed to the European Union that the CBD should be added in the European cosmetics database CosIng. The proposal included the removal of restrictions on Cannabis Sativa L. and the addition of three new INCI (International Nomenclature Cosmetic Ingredient) names to the list. Suggestions for names to be added were Cannabis Sativa leaf extract, Cannabis Sativa leaf / stem extract and Cannabis Sativa root extract. EIHA submitted its proposal in late 2019.
Issue that significantly affected the CBD's position is the so-called Kanavape case. Two French business leaders were charged for importing and marketing CBD oil intended for use in electronic cigarettes. CBD oil was produced from legal hemp plants in the Czech Republic. The oil was extracted using the entire plant biomass, which also contained the leaves and flowers of the cannabis plant.
The accusation was based on French law, according to which only products made from hemp fibers and seeds were legal. The convicts appealed to another court, which had the express task of examining whether there was a conflict between national and EU law in this case. The European Court of Justice was asked to give a preliminary ruling on the case.
Judgment C-663/18 states that EU law, and in particular the rules on the free movement of goods between EU Member States (including Norway and Switzerland), preclude national legislation like that.
The Court notes that the provisions on the free movement of goods within the European Union (Articles 34 and 36 of the Treaty on the Functioning of the European Union) apply because the CBD at issue here cannot be regarded as a 'drug' since the CBD does not appear to have psychotropic effects, or otherwise cause adverse effects on human health.
The Court of Justice then ruled that the provisions on the free movement of goods were contrary to local law. The CBD's marketing ban is a measure prohibited by Article 34 TFEU which has an equivalent effect on quantitative restrictions on imports.
The protection of public health and the assessment of the measures necessary to achieve it are a matter for the national court, but it is for the national court to assess the available scientific information to ensure that the alleged actual risk to public health is not based solely on hypothetical considerations.
Decision to prohibit the marketing of the CBD, which significantly restricts trade in products lawfully manufactured and marketed in other Member States, would be possible only if the risk to public health appeared to be sufficiently substantiated.
CBD legalized in cosmetics
The EIHA proposal and the judgment in case C-663/18 significantly contributed to the clarification of the role of the CBD in legislation when the EU decided to legalise its use in cosmetics in all its member states from February 2021.
CBD can be found in the CosIng database under the name Cannabidiol - Derived from cannabis extract, tincture, or resin. CBD products, such as CBD oil, can be legally marketed with the following properties: antioxidant, anti-sebum, skin protection, and skin care.
However, when ordering CBD products, keep in mind that not all CBD products on the market meet the legal requirements. The marketing of CBD products for oral use is in violation of local government legislation. It is also not permitted in the marketing to promise that the product improves health or otherwise affects like a medicine.