A court decision by the Düsseldorf Court confirmed that the German authorities would consider CBD as Novel Food for its food applications.
Germany is thus following the EU’s recommendations regarding CBD, which has classified it as a “novel food”. The European Commission has decided that CBD and products containing it and intended for food should be considered as Novel Food throughout Europe. To be classified as Novel Food, a product must not have been significantly consumed before May 15, 1997.
The decision to consider CBD as Novel Food means, in theory, that it cannot be marketed in the EU without authorization. Since the European Commission’s decision in January 2019, few EU countries have implemented this policy, leaving room for several unregulated markets in Europe.
Besides, the Novel Food catalog is only indicative of the Member States, which may choose not to follow it. For example, in the United Kingdom, 6 million people use CBD-based products, and the industry is seeking to self-regulate in the absence of formal regulation.
A binding decision
Germany’s decision to apply the European Directive is in line with the guidelines of the German Federal Office for Consumer Protection and Food Safety and sets the fine for possible offenders at €200,000. It stated that it was not aware of any cases in which CBD could be legally marketed as a food product.
Several arguments have been put forward to try to prove otherwise. For example, it has been argued that the ‘novel food’ classification is not valid for a product derived from hemp, consumed for health and welfare purposes well before 1997. However, the German authorities have clarified that, although hemp is not new in itself, the new food regulation applies to the food product derived from it.
German companies wishing to market food products at CBD will, therefore, have to apply for marketing authorization to the European authorities. This process takes at least 18 months and €200,000, mechanically reducing market access for large players. In Spain and Austria, which have announced that they are behind the European classification, no application for a CBD product has been filed since its classification as Novel Food.
Earlier this year, Germany had already partially clarified the status of CBD products. It had specified that trade in hemp flowers could only take place for extracting CBD, and not as a raw product sold at retail.
The full decision can be found here.