Use of CBD in cosmetics and foods

CBD cosmetics novel foods

CJEU 19 November 2020, C-663/18

CBD products continue to be widely available. In November 2020, the Court of Justice of the European Union ruled – for the first time – on the legality of CBD, clarifying in its judgment that CBD does not constitute a narcotic drug as defined in the United Nations Single Convention on Narcotic Drugs; this is the case irrespective of whether the CBD is produced synthetically or obtained naturally from the hemp plant – and from which parts (seeds and leaves vs. flowering and fruiting tops) (CJEU 19 November 2020, C-663/18, available here). This ruling also has legal consequences for cosmetics and foodstuffs:

The EU Cosmetics Regulation (Regulation (EC) No 1223/2009) prohibits the use of narcotic drugs – as defined in the United Nations Single Convention – in cosmetics. Until now, it was unclear whether CBD derived from natural products constitute such a narcotic drug and whether its use in cosmetics was therefore prohibited. The Austrian Federal Ministry of Social Affairs, Health, Care and Consumer Protection, for example, took – and continues to take – this view in a decree, i.e. general instructions issued to subordinate administrative authorities. The judgment of the CJEU has rendered this legal view obsolete and made it clear that CBD may in principle be used in cosmetics. Accordingly, the European Commission has already added the entry "Cannabidiol – derived from extract or tincture or resin of cannabis" to CosIng, the European Commission database for information on cosmetic substances and ingredients.

In the opinion of the authorities, the use of CBD in foodstuffs is novel for the purposes of the European Novel Food Regulation (Regulation (EU) 2015/2283). Novel foods may only be marketed after authorisation by the European Commission. Several authorisation procedures for food products containing CBD have been pending with the European Commission for several years. In 2020, the European Commission suspended the review of these applications for authorization because it, too, considered that CBD could quality as a narcotic drug. As a result of the judgment of the CJEU, the Commission has abandoned this view and has since resumed the authorisation procedures that had been interrupted.