Following the European Court of Justice's recent ruling that a particular form of cannabidiol (CBD) is not a narcotic, the European Commission has now added natural CBD to the permitted list of ingredients for cosmetic products.
In early February 2021, the European Commission's Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs updated the CosIng Database, an EU list of ingredients and substances that can be included in cosmetic products, to include two new natural, plant-derived CBD ingredients.
Currently, in line with entry 306 of the Annex II to Regulation (EU) No 1223/2009 (the Regulation) and Schedules I and II of the Single Convention on Narcotic Drugs of 1961, only CBD ingredients not sourced from the flowering or fruiting tops of the cannabis plant and synthetically produced CBD are permitted in the UK and EU as an ingredient in cosmetic products. The Regulation has been incorporated into English law with some amendments, following Brexit, however the list of prohibited cosmetics ingredients set out in Annex II remains unchanged.
Which CBD ingredients are now permitted for use in cosmetic products?
The first ingredient added to the CosIng Database is "Cannabidiol – derived from extract or tincture or resin of cannabis". As with the synthetic cannabidiol, four functions of this ingredient are set out: anti-sebum, antioxidant, skin conditioning and skin protecting. "Cannabis sativa leaf extract" is the second CBD ingredient added with the functions of this ingredient being skin conditioning and skin conditioning – emollient.
The addition of these two ingredients goes further towards clarifying the regulatory framework in which CBD operates and will likely support greater use of CBD in cosmetic products and investment in product innovation and formulation.
Whilst the CosIng Database serves as guidance only, rather than a legally binding EU position, it is indicative of the changing CBD regulatory landscape in the EU. The UK has also referenced the CosIng Database as a "useful link" within its latest guidance on the Regulation, which suggests that the CosIng Database (including its latest CBD additions) may continue to be seen as advisory within the UK.
The CosIng Database and the Regulation specify the need for a safety assessment to support the sale of any cosmetic product. This requirement would now extend to the use of the new CBD ingredients. Safety assessments have long been a consistent requirement of regulators looking at how best to control the use of CBD. Any brands looking to use CBD within their cosmetic or other products will therefore need to bear in mind the amount of evidence, time and expense required to demonstrate that the CBD element, alongside any other cosmetic ingredient, does not present a safety risk to human health.