ESSNA insights: CBD developments for the sports nutrition industry

In both the EU and the UK, CBD is considered as novel food. This means that pre-market authorisation is required for businesses that want to sell a product containing CBD extracts, isolates, or synthetics in the GB and the EU markets.

On the EU side, in June 2022, the European Food Safety Authority (EFSA) issued a statement​ on the safety of the product, after evaluating 19 applications for CBD under the novel food regulation and following a request by the European Commission.

In its “Statement on safety of cannabidiol as a novel food: data gaps and uncertainties”, EFSA argued that there were knowledge gaps regarding several CBD hazards that needed to be addressed before a conclusion on CBD's safety could be reached.

In particular, EFSA’s Panel on Nutrition, Novel Foods and Food Allergens (NDA) found that there was insufficient information on the health effects from CBD consumption on the liver, gastrointestinal tract, endocrine system, nervous system and on people’s psychological well-being. As a result, all CBD applications are currently on hold pending data that establishes their safety.

Also in December last year, an Irish High Court ruled that CBD products with trace amounts of THC are narcotics, directly defying the European Court of Justice which in November 2020 ruled​ CBD is not a narcotic and that a member state cannot restrict the free movement of CBD products.

In the UK things are developing more quickly than in the EU. After receiving evidence from the industry, at the end of June last year, the Food Standards Agency (FSA) published the final CBD public list​, indicating which products have a credible application for authorisation and are not new to the market.

Also, last month, the FSA updated this list and while no new products were added, approximately 400 products had their status updated to “removed”, meaning they cannot be legally sold in the UK market.

FSA’s decision to remove 400 products from the public list due to the failure of applicants to provide evidence demonstrates the thoroughness and diligence of the Agency in ensuring that CBD products are safe to use – an approach which is welcomed by ESSNA. In the context of our compliance campaign, ESSNA will help to ensure that these non-compliant products will be removed from the market.

Last year, we saw some developments also from the Advertising Standards Authority (ASA). In October 2022, ASA ruled​ against a series of advertisements that made a number of claims in relation to specific CBD products, such as “best CBD oil in the UK” and stated CBD’s “power to counter anxiety and stress”. ASA’s ruling reaffirmed that:

1) Medical claims cannot be made on products that have not received the relevant license from the Medicines and Healthcare products Regulatory Agency (MHRA)

2) There is currently no authorisation for health claims for CBD products

3) An advertisement promoting the health benefits of a food supplement is legal only if the health claim in question is included in the Great Britain nutrition and health claims register

With many sports and active nutrition companies interested in using CBD but lacking knowledge about the product's regulatory framework, the European Specialist Sports Nutrition Alliance (ESSNA), Europe's leading trade body for sports nutrition, works to ensure consumer safety and prevent unfair competition by flagging non-compliant products to the relevant authorities as part of an award-winning campaign addressing non-compliant sports nutrition.

ESSNA has made available to the public a dedicated webpage​ which consumers and businesses can use to report suspicious products. ESSNA takes action to ensure that the companies that market such products comply with the law and, failing that, get non-compliant products removed from the market.

As more and more consumers are interested in the benefits of CBD, sports and active nutrition companies are increasingly investing in this ingredient. With the current complexity of the legislation and the ongoing regulatory developments for CBD, policy monitoring and close engagement with decision makers are now more important than ever for businesses in the sector.