Allen & Overy: German courts confirm sales bans on CBD containing food

According to the latest version of the EU Novel Food Catalogue, EU regulators consider that CBD-containing foods and dietary supplements are classified as novel foods. The Novel Foods Regulation (EU) 2015/2283 defines as “novel” any food which has not been used for “human consumption” to a significant degree within the EU before May 1997. As a result, CBD-containing foods require an authorisation to be legally placed on the EU market according to Article 6 (2) of the Novel Foods Regulation.

Eda Zhuleku

 

In Germany, the regional/district authorities are responsible for monitoring and assessing the marketability of food and issuing sales bans. Accordingly, CBD products might be restricted to varying degrees in the individual federal states. However, the Federal Office of Consumer Protection and Food Safety (BVL) also states that CBD is not marketable in food in Germany without an authorisation. In addition, the German Federal Government seems to support the decision of the European Commission to mark CBD as novel food in the EU Novel Food Catalogue.

As no novel food authorisations for CBD products have been issued in the EU so far, several German district administrations have imposed sales bans on CBD-containing foods and dietary supplements, which have recently been confirmed in summary proceedings by certain administrative courts. The decisions have been issued by the Administrative Courts of DüsseldorfHannover and Gießen in September, November and December 2019. To our knowledge, Germany is therefore one of the first EU member states to actively enforce the novel food provisions for CBD-based food products.

The decisions of the courts were largely based on the EU Novel Food catalogue, which states that Cannabinoids/ CBD-containing foods are to be classified as novel foods as they were not used for human consumption to a significant degree within the Union before May 1997. It was not relevant to the courts that Cannabis sativa L. itself, the raw material of the CBD products, is not considered “novel”. The courts also stated that other products derived from hemp plants, hemp seeds, hemp seed oil or hemp seed protein might not be considered as novel food. However, this cannot be transferred to CBD products, as the Novel Food Regulation applies to the specific product and not to the source of the product. Decisive is whether the specifically offered end product was already used for human consumption and therefore fulfils the characteristics of a novel food, which the German courts denied for CBD containing foods.

It remains to be seen whether the court decisions will be confirmed in the main proceedings. Further developments should be monitored closely.

This article was co-authored by Florian Preinfalk

Source: https://www.aolifescienceshub.com/german-courts-confirm-sales-bans-on-cbd-containing-food/

Top 200 Cannabis Lawyers

We Support

Cannabis Law Journal – Contributing Authors

Editor – Sean Hocking

Author Bios

Canada
Matt Maurer – Minden Gross
Jeff Hergot – Wildboer Dellelce LLP

Costa Rica
Tim Morales – The Cannabis Industry Association Costa Rica

Nicaragua
Elvin Rodríguez Fabilena

USA

General
Julie Godard
Carl L Rowley -Thompson Coburn LLP

Arizona
Jerry Chesler – Chesler Consulting

California
Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
Otis Felder – Wilson Elser Moskowitz Edelman & Dicker LLP
Lance Rogers – Greenspoon Marder – San Diego
Jessica McElfresh -McElfresh Law – San Diego
Tracy Gallegos – Partner – Fox Rothschild

Colorado
Adam Detsky – Knight Nicastro
Dave Rodman – Dave Rodman Law Group
Peter Fendel – CMR Real Estate Network
Nate Reed – CMR Real Estate Network

Florida
Matthew Ginder – Greenspoon Marder
David C. Kotler – Cohen Kotler

Illinois
William Bogot – Fox Rothschild

Massachusetts
Valerio Romano, Attorney – VGR Law Firm, PC

Nevada
Neal Gidvani – Snr Assoc: Greenspoon Marder
Phillip Silvestri – Snr Assoc: Greenspoon Marder

Tracy Gallegos – Associate Fox Rothschild

New Jersey

Matthew G. Miller – MG Miller Intellectual Property Law LLC
Daniel T. McKillop – Scarinci Hollenbeck, LLC

New York
Gregory J. Ryan, Esq. Tesser, Ryan & Rochman, LLP
Tim Nolen Tesser, Ryan & Rochman, LLP
Cadwalader, Wickersham & Taft LLP

Oregon
Paul Loney & Kristie Cromwell – Loney Law Group
William Stewart – Half Baked Labs

Pennsylvania
Andrew B. Sacks – Managing Partner Sacks Weston Diamond
William Roark – Principal Hamburg, Rubin, Mullin, Maxwell & Lupin
Joshua Horn – Partner Fox Rothschild

Washington DC
Teddy Eynon – Partner Fox Rothschild