The Food Standards Agency (FSA) has published its list of the CBD products which can lawfully remain on sale to consumers pending the FSA's formal authorisation. The list contains 22 products only, from just three CBD companies. The list is made up of products which were on sale on or before 13 February 2020 and which were the subject of a novel food application submitted by 31 March 2021. These products are on allowed to stay on the market until a decision about their authorisation is made. This list will come as a blow to those CBD companies whose products do not appear on the list, as they may be perceived as not having submitted a novel food application or that they are not safe.
Products available from 13 February 2020 and which submitted a novel food application must be withdrawn from sale and cannot be lawfully sold to consumers pending the FSA's authorisation. Those whose products were on sale on or before 13 February 2020 and which submitted a novel food application can continue to stay on the market until their retrospective novel food applications are approved or rejected. This arbitrary date, alongside the FSA's list, will likely add further confusion to the already complex CBD legal framework.
The 22 listed products will now undergo a full safety assessment so that a final decision can be made about their sale, with the FSA stating "inclusion on the list is no guarantee of eventual authorisation; that will be determined on the strength of evidence of safety submitted by the companies". The FSA has stated that it is not endorsing the sale of any of these products and that they have not been authorised as novel foods, notwithstanding their appearance on the list. Therefore companies appearing on the list may find themselves taken off and withdrawn from the market, if the FSA eventually decides not to approve the application. This may cause confusion amongst retailers and consumers about the legality of the products but this will depend on the extent to which the decision is subsequently enforced.
The FSA's list will be used by local trading standards to inform their enforcement decisions about removing products from sale, with the FSA asking local authorities to "take account of the products on the list as suppliers of such products have shown an interest in moving towards compliance".
The list is split into two sections: firstly, those products whose applications have been validated in the initial stage of the process before going onto the safety assessment and second, those products whose applications are ‘on hold’, with applicants having set out robust plans to complete the risk assessment but which require further information needed to continue the authorisation process. The FSA will update the list on a weekly basis, as it reviews applications submitted before the 31 March 2021 deadline, and the final full list is expected to be completed in June 2021.
Those companies which failed to submit a novel food application by 31 March 2021 deadline, whose applications have been rejected by the FSA or which do not appear in the final list should withdraw their products from the market. What will now be interesting is the extent to which this is enforced.