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Is calculating the MAX THC content in a product enough to make it legal in the EU? Learn why you might be selling illegal products

In the European Union, it is legal to cultivate and supply cannabis plants for hemp fiber (not for human consumption) if their max THC content does not exceed 0.2% (EU Regulation 1307/2013). Under the Common Agricultural Policy, this is conditional, upon the use of certified seeds of specified hemp varieties. Each financial transaction must be accompanied by certifications of the grow areas psychotropic content. There is a procedure for the determination of hemp varieties and the verification of their tetrahydrocannabinol (THC) content. Imports of hemp are also subject to certain conditions to ensure the above-mentioned max THC limit is respected (EU Regulation 1308/2013).

Many presume this general law and regulation of hemp is applicable for hemp extracts as well as flowers and plant material (biomass), however this is not the case. Today the extraction of hemp is done for its nutritional benefits and CBD content even though the plant is legally cultivated only for the plant material. This is where the grey area begins. Most hemp regulations in the EU are for the hemp plant, but have often been applied to hemp extracts as well. Some have taken the initiative to define the gaps themselves in the hemp legislation to make this designation.

For example:

Italy has a 0.4% max THC content when being grown for human consumption and 0.6% max as a “technical product”, not for human consumption (fabric, rope, paper etc.)

Switzerland, on the other hand, has classified hemp flowers and CBD as “tobacco substitutes” (for human consumption) and as such agreed to a 1% maximum level of THC, the largest THC content in the world.

The Czech Republic and Austria have a 0.3% max THC content for the flower and have regulated hemp flowers as a food supplement as well as a cosmetic product.

Netherlands, Germany, and The UK  have a 0.2% max THC content and have regulated hemp flowers as a food supplement as well as a cosmetic product.

What is the REAL MAX THC content in the EU?
What is the REAL MAX THC content in the EU?

What is not known is that most of these countries also have a ZERO TOLERANCE policy for any THC content in extracts and oils. Any by-product of hemp (such as foodstuff, extracts, and oils) even when under 0.2% THC cannot be sold legally for lack of regulation! This is why full spectrum oils with high CBD content are not widely marketed globally. And it’s also why the isolated compound of CBD (crystalline 99%, no THC) has taken off, distributed and shipped on a global scale.

As an extract, hemp oil falls under the NOVEL FOOD act as stated in the crackdown on Spain CBD distributors article. EU Regulations on the General Food Law cover food during manufacture, preparation, or treatment, and recognize:

“…any product being extracted from or made on the basis of hemp can be considered as narcotic drugs in the meaning of the United Nations Convention on Narcotic Drugs (1961) and the United Nations Convention of psychotic substances (1971). According to Article 2(g) of Regulation (EC) No 178/2002 (General Food Law), narcotic or psychotropic substances covered by the aforesaid conventions should not be considered as “food” and consequently, they should not be allowed to be incorporated into the food during manufacture, preparation or treatment.”

New national rules have to be made to deal with CBD products as these are not yet specifically dealt with in the official laws of today. In the Netherlands, for example, the following rules are currently applied by the authorities, though they are not actually official:

Industrial hemp may only be grown for the production of seeds and fiber. However, growing hemp with the purpose of extracting the leaves or flowers, with the intention to make CBD oil, is NOT allowed. CBD oil has to contain not more than 0.05% THC. This means that imported CBD oil may be used in the Netherlands, but it is not possible to produce it locally. I repeat that these regulations are not yet fixed and officialized.

Products that fall under the Opium Act, including CBD oil, may not be promoted or advertised. Even a health claim is not tolerated for CBD oil in the Netherlands. Because the sale of THC is not allowed in the Netherlands, except with prescription by pharmacies (even though it is openly tolerated in coffee shops and often outside) it is not possible to produce, sell or advertise THC-containing cannabis oil.

We contacted the Cannabis Bureau in the Netherlands to understand this statement further, this is their reply:

“…The sale of CBD products for medical use is only possible after registration of these products as a medicine. Currently, the only legal product that is available to patients in the market is CBD oil produced by a compounding pharmacy. Other CBD oil is illegal unless produced from synthetic CBD, imported CBD crystals or from hemp seeds. The oil should not contain any THC and there should also not be a medical claim (ie not for treatment of a headache, inflammation, etc.) but only as a food supplement.” 

Products today are sold in the EU with THC present, as long as the THC content is below the percentage given above, but it remains a grey area. The recent developments with hemp and CBD as health products have created a lot of unclear situations. Everywhere, authorities are looking for appropriate regulations to deal with this new situation. In the meantime, as manufacturers try to put products on the market, they have to meet the general food and health regulations as well as any additional local hemp or cannabis rules that do apply if they are written. A lot needs to be clarified before cannabis-based health products can claim a stable market within the EU.

Keep yourself updated on the current events and changes in regulations regarding CBD and finished nutritional food products containing CBD and THC. Follow us on our CBD business newsletter to stay in the know.

1 COMMENT

  1. Your information concerning the UK is incorrect. The limit in ‘exempt products’ such as CBD oil is 1mg of THC and CBN in each container. See Misuse of Drugs Regulation 2001 2.(1)(c) The 0.2% is the limit in the growing plant

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