In the last years has been spoken a lot about the complete legalization of CBD for any scope or a just partial legalization for some precise matters. As a matter of fact, CBD can also be seen as an ingredient for all kind of recipes and foodstuffs – but it is safe to use? Is this legal to recognize CBD as a “normal” foodstuff.
Let´s have a look together at the following case: Trier Administrative Court, judgement of 11.03.2022
– 6 K 3630/21.TR -.
The Administrative Court of Trier has ruled that products containing cannabidiol (CBD), which are marketed as foodstuffs, may not be placed on the market without prior authorisation.
The plaintiff, a company produces organic plant-based foodstuffs such as tofu and plant drinks. The product range also includes a tofu product containing cannabidiol. The defendant prohibited the plaintiff from placing the product on the market and obliged it to take back the product, as the tofu product was not marketable as a novel food without prior authorisation.
The plaintiff objected to the classification and initially filed an urgent application, which remained unsuccessful and was rejected by decision of the 6th Board of Appeal of 25 May 2021. The plaintiff’s appeal against this before the Higher Administrative Court of Rhineland-Palatinate and this procedure was also unsuccessful.
Subsequently, the plaintiff filed an action, essentially claiming that the tofu product was not a novel foodstuff. The hemp plant had a history of consumption in the European Union, so that this also applied to the CBD component naturally occurring in the hemp plant.
This assumption is from a legal point of you not correct and violates the European Novel Food Regulation.
According to this regulation, novel foods which had not been used for human consumption on a significant scale in the European Union before 15 May 1997 could only be placed on the market if they were authorised and included in the Union list. These conditions were not met in the present case. The judges stated that the plaintiff had violated the relevant provisions of the European Novel Food Regulation by placing the tofu product on the market.
The fact that the cannabis plant or its ingredients had already been consumed before the cut-off date was not decisive. For the assessment of the novelty of a product, the foodstuff to be assessed – in this case the tofu product with cannabidiol – and the production process were decisive, but not the individual ingredients per se. Moreover, the plaintiff had not submitted any substantiating evidence showing that its product or even the hemp extract containing CBD had been consumed before the reference date.
CBD-Oil as foodstuff? What is legal? What is not legal to put on the market? Contact us. Our attorneys can support your business idea and assess the legal framework for you.