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The Cannabis sativa L. plant is not a Novel Food. Yet another confirmation from Warsaw.

June 24, 2022

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The Cannabis sativa L. plant-including the leaves, inflorescences and stems-is not a Novel Food. Yet another confirmation comes from the Supreme Administrative Court in Warsaw, in its ruling 17.2.22.

1) Cannabis sativa L., obstacles to free movement of goods in EU

The legitimacy of use of certain parts from the Cannabis Sativa L. plant-the inflorescences in particular, and the CBD they naturally contain-is being questioned by authorities in some member states. With measures already censured by the European Court of Justice as unjustified and therefore unlawful restrictions on the free movement of goods in the internal market. (2)

The Administrative Court of Düsseldorf, Germany, was the first national court to apply the criteria set by the EU Court of Justice. Affirming the German authorities’ ban on hindering the sale of products that contain CBD in natural extract form. (3) And the Supreme Administrative Court in Warsaw went further, explaining why any part of the Cannabis Sativa L. plant can be legitimately used in food production.

1.2) Poland, the contested measure.

On 15.5.20 the Polish health authority had challenged the notification by the company Kombinat Konopny, of the food supplement called ‘HerbsforGoodMood’ (‘Herbs for Good Mood‘). This product, in the recommended daily dose (4 capsules), contains 1000 mg of hemp grass(Cannabis sativa L.), 320 mg of valerian root(Radix valerianae), 320 mg of lemon balm(Melissae folium) and 360 mg of olive oil.

The Chief Sanitary Inspector had considered that the parts of Cannabis sativa L. not explicitly mentioned in the European Catalog–e.g., inflorescences, leaves, stems–should be considered as Novel Food. However, the operator challenged this measure in the various levels of administrative proceedings, all the way to the Supreme Court. Which, in judgment 17.2.22, dwelt on the non-exhaustive nor binding nature of the European Catalog.

2) Novel Food, the European Catalogue.

The European Catalogue of Novel Foods indicates that Hemp Sativa L. – as well as some products derived from it such as seeds, seed oil, seed meal, and defatted hemp seeds – are excluded from the scope of reg. EU 2015/2283. Instead, they are traditional foods, because of their history of meaningful and safe use prior to 15.5.97.

Other entries in the catalog, however, list extracts of Cannabis Sativa L. as novel- therefore subject to Novel Foods regulations. That contain cannabinoids. Including products that contain extracts of it (e.g., edible oils with added CBD). In addition to extracts from plants other than Cannabis sativa L. that also contain cannabinoids, as well as synthetic cannabinoids.

3) The verdict of the Supreme Court in Warsaw.

The Supreme Administrative Court in Warsaw first reiterated that the European Novel Food Catalog is devoid of legal effect. And he reasoned a different point of view from that expressed by the European Commission, regarding the status of some hemp-derived foods. Deducing the following:

1) The European Catalog refers to the whole plant of Cannabis sativa L. – and not only to some of its parts-a history of significant consumption prior to 15.5.97,

2) Numerous other acts confirm this assumption. Among them,

– the 18.12.97 opinion of the European Commission itself, which excluded the hemp plant from the scope of the Novel Food Regulation;

– a significant body of publications reporting on the consumption of Cannabis sativa L. as food for hundreds or even thousands of years. Especially in Italy, Germany, Switzerland and Poland,

– numerous testimonies as further proof.

4) History of meaningful consumption, green light for hemp in foods

The interpretation of the European Catalog as an exhaustive and binding list is therefore incorrect. And the long tradition of food consumption of Cannabis sativa L. – every part of it, including leaves, inflorescences and stems – unequivocally legitimizes its use, outside the scope of the Novel Food Regulation (EU reg. 2015/2283).

The regulatory authorities of the various member countries are thus further warned about the liabilities (civil, administrative and criminal) they and their officials may incur if they persist in the unlawful obstruction of the production and sale of food matrices made from Cannabis sativa L. Including, among others, hemp inflorescences for herbal tea cutting or culinary uses. (4)

Dario Dongo

Cover image from article in footnote 1