17 October 2019

Cannabis (CBD and THC) and hemp in the Netherlands

Category: Cannabis law

The Netherlands cannabis market, also for related hemp products like CBD, has proven to be very interesting for all kinds of companies operating both internationally and nationally. Our Dutch cannabis lawyers have helped many companies with both regulatory and practical advice regarding the options to conduct cannabis business in the Netherlands.

Cannabis law touches all kinds of subjects. Ranging from medicines law to the rules regarding cosmetics and much more, depending on the product, and our team has seen nearly all of it by now. The constant factor to deal with is the Dutch narcotics law. In short, the Netherlands allows products (food supplements, cosmetics) that are high in cannabidiol (CBD) and low in (various chemical variations of) tetrahydrocannabinol (THC) if:

  1. the product has no more than 0,05% THC;
  2. the product has no medical claims, and;
  3. the buyer is not advised to take in more than 160mg CBD per day.

How much THC or CBD is allowed in products in the Netherlands

THC extracted from a weed plant (‘wiet’ in Dutch) is not allowed to be in products in the Netherlands; depending on the product it may be necessary to consult the Netherlands Food and Consumer Product Safety Authority (NVWA). In addition, Dutch law has options to allow medicinal cannabis products, which may exceed the 0,05% THC-threshold.

Because cannabis law is both a very specific area of law and at the same time very wide in its range of subjects, we strongly advise consulting someone experienced and specialized in this line of work. Blenheim’s Cannabis Lawyer’s Team is available to deal with all kinds of questions related to cannabis products in the Netherlands.

Legislation on cannabis: Dutch narcotics/opiate regulation

Dutch cannabis law centers around the Opium Act (Opiumwet), which is expanded by the Opium Decree (Opiumbesluit), various (published and unpublished) policy rules and the Single Convention on Narcotics Drugs and the Convention on Psychotropic Substances. The Dutch Narcotics Act distinguishes hard (THC and hemp oil) and soft drugs (hashish and hemp), by placing them on either list I or list II, and forbids their import, cultivation, modification, sale, supply, transport and possession, but there are exceptions and exemptions and an unpublished policy of tolerance from the Bureau of Medicinal Cannabis (see previous blog on cannabis for more on this).

In addition to the narcotics aspect to cannabis, we’ve also mapped the various other aspects that come to the cannabis market. Depending on the intention of the seller (are the products food stuff, food supplements or cosmetics or will there be medical claims), different secondary legislation will also apply, all of which our Team can advise you on.

Food stuff and cannabis: secondary legislation I

Food stuff law in the Netherlands distinguishes different aspects, laid down in different rules and regulations, mostly of European origin. General food law (central framework: European Food Regulation 178/2002) regulates food stuff. Topics of interest are the contents of food stuff and their packaging, labeling and advertisement (claims etc.).

In addition, there is the Novel Food Regulation 2015/2283, which allows for member states to demand a seller to apply for approval by the authorities before he is allowed to place CBD-products on the market, due to the recent addition of cannabidiol to the Novel Food Catalogue. More on this in my blog on Novel Food in the Netherlands.

Medicines regulation: secondary legislation II

If the product is framed as a medicine or actually has medicinal properties, medicine law can apply. To avoid that do not express medical claims for the product. The Medicines Act (Geneesmiddelenwet) and European Medicines Directive 2001/83/EC regulate any product that takes the form (by working or by presentation) of a medicine. This is known as the criterium of presentation (‘aandieningscriterium’) or the criterium of administration (‘toedieningscriterium’).

The administration criterion is most in line with our general views on medicines. A product meets this criterion if it can be administered to cure or prevent diseases, make a diagnosis or otherwise affect the physical functions of the human being. In the Hecht-Pharma judgment (ECJ, 15 January 2009, Case C-140/07), the European Court of Justice ruled that all the characteristics of a product must be taken into account when classifying a product as a medicinal product, which are too diverse to explain here.

A product may also be classified as a medicinal product along the line of the presentation criterion. The European Court of Justice has also laid down criteria for this. What matters in this respect is the medical claim(s) made by the manufacturer or seller and the impression that the presentation of the product gives to a consumer. Through this broad interpretation, the European Court of Justice wants to protect consumers against quackery.

Cosmetics and CBD: secondary legislation III

When the product qualifies as cosmetics, the Cosmetic Products (Commodities Act) Decree 2011 and European Cosmetics Regulation 1223/2009 apply. Under these regulations, different obligations apply to the distributors and/or producers of the items, such as safety guidelines, product labelling compliance, identification requirements and notification requirements. Furthermore, the regulation does not allow cosmetics to contain some (traces of) substances and states rules regarding (semi-)medical claims for cosmetics.

Although there are again options for exceptions and exemptions under Dutch cannabis law, violation of these rules may lead to fines of up to € 1.050 per violation or a fine of a height related to the turnover of the offender.

Tobacco, related products & cannabis: secondary legislation IV

If the product has anything to do with tobacco, smoking or vaping, tobacco regulation can apply. The Dutch Tobacco and Related Products Act (Tabaks- en rookwarenwet) and European Directive 2014/40 regulate tobacco and tobacco related products, including ‘e-smoking’ and vaping, as well as liquids and cartridge fillings.

Be aware that these rules can apply, even though there is no tobacco involved. On top of that, they impose different restrictions and obligations (but again, there are exceptions and exemptions) that have to do with advertisement, sponsoring and age verification systems and that can lead to fines of up to € 450.000.

Advice on Dutch Cannabis Law

Cannabis law is interesting, both from a business and a legal point of view. It is diverse and detailed (sometimes even down to a chemical level) at the same time and requires specific knowledge from a cannabis lawyer to work with securely. It is important to understand its nuances, especially since enforcement can lead to very heavy fines or even jail time and because it is a volatile area of law, subject to frequent changes, of which we can notify you.

Blenheim’s cannabis team, which is also connected to both a more general international network of lawyers and a more specialized network of food stuff and cannabis lawyers around the world, is ready to discuss your options or current practice and how to utilize or adapt them for the Netherlands. Please don’t hesitate to contact Mark van Weeren for any question you may have on the above.