Trading advice from several sources is available to help businesses comply with the law.
The Health and Safety Executive website has advice on:
The Chartered Trading Standards Institute provides advice on a number of topics:
In the guide
Novel foods explained, including restrictions on their use and an explanation of the legal status of foods containing CBD and the permitted uses of hemp
This guidance is for England and Wales
This guidance relates to both the manufacture and sale of prepacked food, food that is prepacked for direct sale, non-prepacked food (food sold loose etc), and food sold from catering establishments (cafés, restaurants, etc).
What are novel foods?
For the purpose of this guide only, and for the purpose of highlighting the difference between 'food' and 'novel food', food is defined as:
By contrast, a novel food is any food or food ingredient that has not been eaten to a significant degree by people within the EU prior to 15 May 1997, and also fits into one of the following categories:
[*See 'Traditional foods from third countries' below for more information on the asterisked text.]
What is the significance of being a novel food?
Novel foods cannot be used in food unless they have been through an approval process to check that:
These are checked in a process referred to as a safety assessment.
If a food / ingredient you wish to use is a novel food, and has not yet been authorised, you must not use it in, or as, food.
When using an ingredient that you know or suspect meets all or part of the definition above, you should research whether the food / ingredient is a novel food. Things to look out for include unusual ingredients, ingredients from outside the EU not in common usage within the EU, or an ingredient that is common but being used in a new or different way (for example, Chia seed oil rather than Chia seed).
Identifying a novel food
If you are concerned that a food / ingredient might be a novel food, you can do the following (preferably in this order) to check its novel status:
1. Check the list of authorised novel foods
2. Check the Novel Food Catalogue
3. Conduct online research
1. Check the list of authorised novel foods
The list of authorised novel foods can be found in the Annex to EU Regulation (EC) 2017/2470 establishing the Union list of novel foods (see 'Key legislation' below). To search for the common or scientific name of the food / ingredient on the web page use Ctrl-F (on Windows computers) or Cmd-F (on Macs).
The legislation is updated regularly but the most recent updates can be found at the bottom of the Union list of novel foods page on the European Commission website.
2. Check the Novel Food Catalogue
Foods that have been through a safety assessment can be found listed in the Novel Food Catalogue.
The catalogue is arranged in alphabetical order and can be searched with keywords.
When searching you must use the scientific name of the food / ingredient - for example, if you want to find pomegranate you have to search for 'Punica granatum'. You can find the scientific name by searching 'scientific name of X' online.
Each entry will have one of four icons below the text:
|The food / ingredient is not a novel food but its use may be restricted in some EU Member States.|
|The food / ingredient can be used in food supplements but cannot be used in other foods without going through the authorisation process.|
|The food / ingredient is a novel food and cannot be used until a safety assessment has been completed.|
|The product may be a novel food, but more information is required before a decision can be made.|
If you want to use a food / ingredient displaying the '?' icon you should contact your local trading standards service for further advice.
3. Conduct online research
If you are unable to find the food / ingredient in the authorised list or the catalogue, you can research it online.
The best place to start is to search 'What is X?' online and use the results to try and determine if the product was commonly eaten in the EU prior to 15 May 1997.
The European Commission's Human Consumption to a Significant Degree: Information and Guidance Document will help you understand how to assess consumption of the food prior to 15 May 1997.
If your research leaves you in any doubt as to whether the food is novel, you should contact your local trading standards service for advice.
If your research shows that the substance is a food additive you can check the European Food Additives Database to see if it is listed.
The database specifies what types of food each additive can be used in. If it can be used in categories outside of food supplements, then it is not a novel food. If it can only be used in food supplements, then it may still be novel; check its status in the Novel Food Catalogue.
Novel food authorisation
If you want to use an unauthorised novel food you must apply for authorisation.
The first step will always be to determine whether the food is novel (see 'Identifying a novel food' above).
If your research conclusively shows that the food is not novel there is nothing more you need to do.
If your research is inconclusive, and you have concerns that the food may be novel, you will need to go through a consultation process (referred to as an Article 4 request), which will determine whether the food is novel.
Your local trading standards service will be able to offer some advice on whether you need a consultation but you may ultimately have to discuss it with the FSA Novel Foods Team (email@example.com).
If either your research or the consultation process determines the food is novel you must apply for authorisation and will need to gather and submit enough evidence to prove that the food meets the three criteria above (not a danger to consumers etc).
If you don't provide sufficient evidence to conclusively meet the criteria, the food will not be authorised.
The evidence you submit should be specific to your product; therefore gathering together publicly available information will not be sufficient. Any business seeking approval for a novel food will probably need to conduct independent scientific research (which will be beyond the technical / financial means of some small and medium-sized businesses).
Making an application is free; however, the process of gathering and submitting the evidence is expensive and takes a long time to complete, although there is a simplified process for foods from third countries (countries outside the EU) with a history of safe consumption (see below).
For more information on the authorisation process and what information your application should contain, please visit the novel foods page of the Food Standards Agency website.
The list of current applications can be found on the European Commission website.
Traditional foods from third countries
Traditional foods from third countries are foods from countries outside the EU with a history of safe consumption for 25 years or more. A history of safe consumption is more than anecdotal evidence and must be based on both compositional data and evidence of use.
A traditional food from a third country must also meet the definition of novel foods above, except for those items marked with an asterisk (*); foods that are / contain the asterisk-marked items are not considered to be traditional foods from third countries.
Additionally, traditional foods from third countries must be the products of primary production (rearing, growing, harvesting, milking, farmed animal production, hunting, fishing and the harvesting of wild products).
A novel food application for a traditional food from a third country requires less information to be submitted than a normal novel food application and has a streamlined process of approval.
Guidance on preparing an application for a traditional food from a third country can be found in this scientific opinion from the European Food Safety Authority (EFSA).
CBD-based foods and food supplements
Cannabidiol (CBD) is a type of cannabinoid isolated from cannabis plants or produced synthetically.
CBD is increasingly being used in foods and food supplements; this section of the guidance explains the legal status of using CBD in this way.
ARE CBD-BASED FOODS / FOOD SUPPLEMENTS CONTROLLED DRUGS?
Cannabis sativa L is the most common strain of cannabis in the EU; it contains many cannabinoids, one of which is CBD. The most widely known cannabinoid is tetrahydrocannabinol (THC) which causes the 'high' associated with cannabis use.
THC and other cannabinoids are controlled drugs; their possession, use in manufacture, etc is a criminal offence under the Misuse of Drugs Act 1971 and the Misuse of Drugs Regulations 2001.
CBD can be isolated from other cannabinoids present in Cannabis sativa L, and in its pure form it is not a controlled drug.
Extraction and purification of CBD is a complicated and expensive process. If the CBD is contaminated with other controlled cannabinoids, at any detectable level, the product is a controlled drug and its possession, use in manufacture, etc is a criminal offence.
A licence can be obtained to grow low-THC hemp (less than 0.2% THC) from which CBD can be extracted. However, this does not mean that the final product may contain up to 0.2% THC; if THC is present at any detectable level the product is a controlled drug.
ARE CBD-BASED FOODS / FOOD SUPPLEMENTS MEDICINAL PRODUCTS?
The definition of a medicinal product has two parts, as follows:
Medicinal claims are significantly different to health claims, although the two are often confused. Please refer to 'Nutrition and health claims' for more information.
If the product meets either part of the definition it is treated as a medicinal product. It will need to be authorised by the Medicines and Health Care products Regulatory Agency (MHRA) and will be subject to strict rules on composition and labelling.
The Department of Health and Social Care (DHSC) has now accepted clinical evidence that cannabis and CBD can be used to treat certain illnesses and medical conditions; as such, cannabis-derived medicinal products (CDMP) are now available on prescription.
However, the levels of CBD recorded in the clinical evidence is usually many times more than is typically present in CBD-based food / food supplements. This means that CBD-based food / food supplements are not typically able to provide the medicinal benefits seen in the evidence. Merely containing CBD is not enough for the product to be classed as a medicinal product.
Provided the product makes no claims about treating or preventing illness (including pain relief), the product is not a medicinal product.
Claims can be in any form, including:
Claims that are made elsewhere than on the product (website, social media, publications, etc) may result in the product being classed as a medicinal product.
If you have any concerns about whether your product is a medicinal product, please contact the MHRA Borderline Products Team on 02030 806000.
Please refer to the MHRA document A Guide to What is a Medicinal Product for further information.
ARE CBD-BASED FOODS / FOOD SUPPLEMENTS NOVEL FOODS?
The CBD industry has been unable to provide sufficient evidence that CBD and other cannabinoids have been consumed to a significant degree within the EU prior to 15 May 1997.
CBD, and cannabinoids in general, are novel foods and cannot be legally included in food or food supplements until a safety assessment has been completed and the use has been authorised by the European Commission.
ARE CBD-BASED FOODS / FOOD SUPPLEMENTS LEGAL?
Due to their classification as novel foods, they cannot be legally sold until they have been authorised.
However, the latest FSA statement (13 February 2020) states that any CBD-based food / food supplement that is safe, not contaminated with other cannabinoids, correctly labelled, and placed on the market in England, Wales or Northern Ireland before 12 February 2020, can continue to be sold until 31 March 2021.
This relaxation of the rules does not apply to any new products placed on the market after 12 February 2020, or to products that have been placed on the market in the EU but not in England, Wales, or Northern Ireland. For information about Scotland, please see the Food Standards Scotland website.
A novel foods application for authorisation must be made for all CBD food / food supplements by 31 March 2021.
As stated above, the evidence you submit should be specific to your product and will likely need to be based on independent scientific research that will be beyond the means of many small and medium-sized businesses. If you submit an argument based on pre-existing, publicly available information, this will not be accepted as sufficient evidence and the application will be dismissed.
If you intend to submit an application you should discuss the content with the FSA Novel Foods Team beforehand so that they can offer advice on whether your application contains sufficient detail and what additional information you might need to include. Liaising with the FSA does not guarantee that your application will be successful.
The process of gathering sufficient information for an application can take a long time. The FSA recommends that you contact them for advice at least six months prior to the 31 March 2021 deadline (30 September 2020).
Products for which a valid application for authorisation has been submitted can continue to be sold while the authorisation process is ongoing (between one and 17 months). Any products that are subsequently not authorised will need to be removed from sale.
Any new CBD-based foods / food supplements placed on the market after 12 February 2020, as well as those products for which a validated application for authorisation has not been received by 31 March 2021, may be removed from sale by local authorities.
For further advice on making a novel food application for CBD-based foods / food supplements please contact the FSA Novel Foods Team via firstname.lastname@example.org.
ARE CBD-BASED FOODS / FOOD SUPPLEMENTS SAFE?
So far the evidence is inconclusive; however, the Committee on Toxicology (COT) has found evidence of potential adverse health effects and as a result the FSA has issued safety guidance. It is particularly important to note that, for healthy adults, the recommended maximum dose is 70 mg a day (approximately 28 drops of 5% oil).
Hemp-based foods / food supplements
Hemp / industrial hemp / low-THC industrial hemp is a product of cannabis plants that contain less than 0.2% THC. Licences to cultivate and process such plants can be obtained from the Home Office.
Cannabis is a controlled drug; however, this classification does not apply to certain parts of the cannabis plant, and therefore these parts (and anything made from them) are not controlled drugs. The parts of the plant to which the classification does not apply are:
Cannabis has a significant history of consumption in the EU prior to 15 May 1997. This means that the cannabis plant itself (Cannabis sativa L) is not a novel food, and as such those parts of the plant not controlled by other legislation (seeds / plant fibre / mature stalk) can be used in food, providing the following conditions are met:
Failure to comply with trading standards law can lead to enforcement action and to sanctions, which may include a fine and/or imprisonment. For more information please see 'Trading standards: powers, enforcement and penalties'.
Last reviewed / updated: May 2020
In this update
General detail added
This information is intended for guidance; only the courts can give an authoritative interpretation of the law.
The guide's 'Key legislation' links may only show the original version of the legislation, although some amending legislation is linked to separately where it is directly related to the content of a guide. Information on amendments to legislation can be found on each link's 'More Resources' tab.
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