12.11.2019: CBD : What do companies need to know now?

The hemp ingredient cannabidiol (CBD) is said to have positive properties, e.g. as an anxiolytic,
analgesic, sleep aid, arthritis or even epilepsy.
According to Dr. Späth & Partner Rechtsanwälte mbB, based in Berlin and Hamburg, more and more
companies in Germany want to position themselves in the growth market CBD, cannabidiol. Hemp
products are "in fashion" and meanwhile socially acceptable, some of them are now even considered
healthy organic products and can be found more and more in drugstores and pharmacies or even in
the food trade.
The Berliner Morgenpost, for example, had reported in a report dated 08.02.2019 entitled
"Wundermittel CBD" that the market was growing rapidly.
In Germany, high growth rates are to be expected in this area and so even a well-known drugstore
had included non-prescription CBD capsules in its range, then removed them again and it was
temporarily uncertain how to proceed …
Interested companies who want to enter the growth market CBD should, however, always check the
legal admissibility in individual cases, because otherwise nasty surprises can also threaten in the CBD
market:
After various raids in Berlin and Bavaria (there are said to have been more than 40 raids here), the
uncertainty is sometimes quite great, which is permissible and which is not, because the public
prosecutor's office accused some companies of trading in narcotics.
It is therefore always up to the company to check in each individual case whether the CBD product in
question is a food, food supplement, drug or cosmetic, tobacco product, etc. The company is not
allowed to trade in narcotics.
The company in Berlin, against which the public prosecutor's office became active, was accused of a
violation of the Narcotics Law, among other things the authority refers to a criminal judegment of the
OLG Hamm from the year 2016. In fact, the OLG Hamm had issued a criminal judgment against a
trader with the criminal judgement of 21.06.2016 with the Az. 4 RVs 51/16. In the worst case, not
only the destruction of the goods, but also considerable criminal consequences threaten in the event
of incorrect treatment.
In the opinion of Dr. Späth & Partner Rechtsanwälte mbB, the CBD flowers, which are not considered
marketable in Germany, are particularly problematic. CBD flowers were also involved in some of the
seized products in Berlin.
However, even in the case of CBD food supplements, the legal situation must always be examined on
a case-by-case basis:
The often voiced theory that products with less than 0.2 % THC should be fully marketable cannot be
confirmed by Dr. Späth & Partner.
For example, the BvL, the Federal Office of Consumer Protection and Food Safety, recently
announced that the BvL considered that for products containing CBD, either an application for
approval of a medicinal product or an application for approval of a novel foodstuff had to be
submitted before they could be placed on the market.
The classification of products and the assessment of marketability is the task of the state authorities
responsible for food monitoring, so that it is always necessary to examine which view is decisive in
each individual case.

It must also always be clarified whether the EU Novel Food Catalogue could be relevant, according to
which, according to Art. 6 para. 2 NFV, only approved novel foods listed in the European Union list
may be placed on the market in accordance with the conditions and regulations laid down in the
Union list.
There was a great deal of uncertainty between whether CBD can even be qualified as a "novel food"
and, if so, whether this applies to all CDB products or only to CBD products which contain more CBD
than the plant of origin, the legal situation is in flux.
A Czech company had already submitted an application for a CBD-containing food supplement in
accordance with the EU Novel Food Regulation in 2016, but no decision has yet been taken on this.
Here, too, it must always be checked on a case-by-case basis whether the NFV is to be observed,
because in the event of infringements there is also a threat of sanctions that are "effective,
proportionate and dissuasive", whatever that means.
Companies wishing to operate in the CBD sector must therefore always ensure that various legal
provisions and the correct "labelling" of the products are observed, and that the highest degree of
caution is also required, e.g. with so-called "health claims", and that it is always necessary to check in
each individual case whether they are permissible.
Interested companies who want to be active in the CBD sector must therefore comply with the legal
requirements in order to be on the safe legal side and not experience any nasty surprises in terms of
administrative offences or even criminal law.

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