David Hardstaff and John Binns of BCL Solicitors LLP discuss the regulatory landscape in the UK following the EFSA's decision to pause all novel foods evaluations for CBD products.
The European Food Safety Authority (EFSA) has dealt a blow to the European and UK CBD industries, identifying several hazards related to CBD intake and pointing out deficiencies in both the experimental animal and human research data.
However, its findings primarily highlight a lack of sufficient evidence needed to fully assess the safety of CBD as a food. Whilst the findings are not binding on UK regulators, the beleaguered UK CBD industry must now brace itself for its inevitable fallout.
An industry under fire
Although no longer a member of the EU, the UK continues to align with its Novel Food Regulation; and so, whilst not determinative, the findings of the EFSA are likely to concern UK regulators grappling with the CBD issue.
UK-based CBD companies had already been feeling bruised prior to the release of the EFSA's statement. From operating within a light-touch regulatory regime, founded on the belief that CBD products were no different to any other readily available food supplement, the closing drawbridge that was the Food Standards Agency's (FSA) novel food application process has been a shock to the industry's system.
The process, which required non-medicinal CBD products to be the subject of an application for authorisation, has caused a stir within UK CBD businesses and exposed brands' reliance on white label goods. This has left many querying the real value behind some of the celebrity-endorsed brands vying for a piece of the UK's CBD landscape.
The longer-term consequences are unclear.
When announcing the publication of its list of products which have submitted a valid novel food application, the FSA confirmed the role of enforcement authorities and that it had recommended to local authorities that any products not on the list should be withdrawn from the market. Such products would be deemed ‘unsuitable for progressing to authorisation', or in other words, unsellable.
This was prior to the EFSA's statement, which will clearly not aid the industry's plight. The FSA will publish its full list of pending novel food applications this month.
The position of the EFSA
Although the EFSA has not commissioned its own research, its statement points to existing animal and human studies which have been conducted to identify safety concerns linked to CBD. In considering the safety of food products, the same cost-benefit analysis used when assessing the safety versus efficacy of medicines doesn't apply. Put simply, adverse effects from food consumption are not tolerated, regardless of other perceived benefits. The bar to find grounds for caution in the regulation of CBD as a foodstuff is therefore a low one.
The EFSA statement refers to its finding ‘clear evidence' for liver toxicity of CBD, demonstrated by liver hypertrophy in laboratory animals and increases in liver enzymes in experimental animal and human studies. Data gaps are identified in relation to other areas of concern, including on gastrointestinal tract, endocrine system, nervous system and on psychological function.
The statement recognises that most of the existing human data emanates from studies into the efficacy of the CBD-based medicine Epidyolex at therapeutic doses. The limitations of such studies in the context of assessing CBD as a food are clear.
As one door closes, another opens?
Although bad news for CBD products marketed as foodstuffs, the EFSA's statement and novel food considerations shouldn't impact on the availability of CBD products as medicines, which are separately regulated.
Outside of pharmaceuticals, one of the largest and arguably sustainable CBD customer bases have been consumers with some sort of health or therapeutic need, for which they are unable to access medicinal cannabis.
One potential consequence of the drive to rein in the UK's CBD industry is reduced access to the previously available wide range of products. In recent times, it has been difficult to find a high street or retail centre between John o' Groats and Land's End without CBD products for sale. That position could dramatically change, shifting some products into, and prompting changes to, the medicinal CBD space.
Cannabis-based products for medicinal use, or CBPMs, have been available for prescription in the UK since 2018; however, access is strictly limited through existing and bespoke regulatory controls. In addition to the regulatory barriers to access, funding has long been cited as a problem, with limited patient access through the UK's National Health Service (NHS). On drilling down into the issue, a lack of UK-based research as to the efficacy of CBPMs is the starting point.
Several laudable initiatives have sought to plug the research gap, including Project Twenty21, the UK's largest observational medicinal cannabis study. However, observational studies have their limitations, which is why most have recently welcomed with open arms the UK Health Research Authority-approved trial, Canpain.
Canpain is planned to run for three years and aims to conduct clinical trials involving up to 5,000 patients suffering from chronic pain. The trial will be the first of its kind in the UK and could be significant in opening access to CBPMs for the UK's estimated 1.4 million patients currently accessing cannabis through the illicit market.
As highlighted by the EFSA statement, reliable data on the number of CBD consumers with some sort of therapeutic need is patchy, but as access to CBD products becomes more limited through enforcement of the novel food regime, access to CBD-based medicines could provide an important lifeline.
This could also present opportunities for the CBD industry, which until now has seen a benefit in its separation from the medicinal market. The industry must ask itself whether it is now time to explore the jump from consumer products to medicines.
Can a more agile CBD industry flourish and better serve patients?
No one would suggest that the development and marketing of a new medicinal product is a straightforward task. Although CBD is not a controlled drug in the UK, the position of the UK Home Office remains that it is difficult to produce CBD without any trace element of THC, which is controlled.
Consequently, it is usually necessary to begin the process of developing a CBD-based medicine with an application to the Home Office for a Schedule 1 controlled drug licence for research purposes. Further licences are likely to be necessary throughout the development process, including a Schedule 2 controlled drug licence for operating with CBPMs, as well as Manufacturers (Specials) and Distributors licences from the Medicines and Healthcare products Regulatory Agency (MHRA).
The regulatory hurdles are many, but the potential UK market – thought to be the largest untapped market in Europe – is significant.
Turning to the development of CBD-based medicines could represent a lucrative opportunity for some of the brands which have until now limited their reach to what might be described as the lifestyle market. That may not explain or justify the EFSA and FSA's stance, and nor does it remove the urgent need to liberalise access to CBPMs in the UK.
But for consumers with a therapeutic need, a more agile CBD industry, equipped to cross the barrier between the medicinal and non-medicinal worlds, would unquestionably be a good thing.
Originally Published by Cannabis Wealth on 28 June 2022
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