STENTORS: LEGAL ASPECTS OF CANNABIDIOL IN EU AND SLOVAK REPUBLIC09/01/2021
LEGAL ASPECTS OF CANNABIDIOL IN EU AND SLOVAK REPUBLIC
In the past few years, it would be difficult to anyone, even to legal professionals, to avoid at least certain exposure to topic of “marijuana”. Although general public, especially here in Slovak Republic, has been often focused on the most eye-catching issues such as decriminalization and/or legalization of use of marijuana by private individuals, multibillion-dollar/euro cannabis industry slowly emerges from the shadows.
As a part of the broader marijuana landscape, a political and legal debate on "cannabidiol" has developed not only within the European Union but also in other countries recently.
Cannabidiol (CBD) is substance which is obtained from hemp but can be also produced in synthetic form.(1) Unlike THC, CBD has no psychotropic effects and should not be viewed as narcotics as confirmed by Court of Justice of the European Union(2) and its psychoactive effects are also different (no high as associated with THC). On other hand, CBD has been subject to numerous studies aimed at proving its health benefits.
The Slovak Republic has long been the last country within the European Union in which the CBD was considered a prohibited substance since classified and listed as a psychotropic substance in national legislation.(3) For this reason, free sales of products containing CBD in Slovakia were considered a criminal offense (4) and prohibited.
Considering the ruling of Court of Justice of the EU mentioned above, CBD was finally removed from Slovak list of psychotropic substances as of 1st May of 2021.(5) However, this change does not mean that it is currently possible to sell any products containing CBD. CBD still cannot be marketed as a food or as a nutritional supplement since CBD is legally considered a novel food. Thus, CBD can be introduced to the market only after it is put on the so-called EU list of novel foods.(6) Although several applications in that respect have been submitted already.(7), CBD has not yet been published on such list. However, in the light of the said ruling of the Court of Justice of the EU, the European Commission undertook in December 2020 to re-evaluate such already submitted applications and CBD could be put on the EU list of novel foods shortly. As the direct result of that it would be possible to list CBD as food throughout the EU.(8)
Obviously, we are not at the end of the road neither as far as complete legalization of use of CBD (and marijuana in the long run?) both in the Slovak republic and in the EU. Although not prohibited as narcotic anymore, CBD still cannot be placed on the market in the Slovak Republic nor as a food neither as a nutritional supplement. Although many entrepreneurs are getting ready and seeking legal advice how and when to start their sales activities, they need to wait until CBD is included in the EU list of novel foods.
However, some of the entrepreneurs in Slovak Republic think of themselves to be smarter as the other ones. The legislation does not preclude CBD from being marketed as a cosmetic product! And although CBD cosmetics may not be marketed as products that can be ingested and have positive effect on human´s health – in which case such products would be subject to strict regulation in the field of medical drugs and medical devices – we see nowadays a big influx of allegedly CBD cosmetic products marketed and sold as disguised nutritional supplement or even drug with healing effect. So far we have not noticed any activity of local regulators in that respect, still a sound legal advice to clients must at this point of time be to avoid any marketing and/or advertising activities that would potentially make the consumers believe that they do not buy cosmetics.
Summarizing the above, it will be interesting to see what the future of respective EU regulation will be - will it allow a generous and broad development of market with CBD products or vice versa, will it try to limit it?
(3) Annex No. 1 of Act No. 139/1998 Coll. on narcotic drugs, psychotropic substances and preparations
(4) Criminal offense of illicit manufacture of narcotic drugs and psychotropic substances, poisons or precursors, their possession and trafficking in them under Section 171 of Act No. 300/2005 Coll. Criminal Code
(5) By novel – Act No. 124/2021 Z.z.