Products containing CBD and THC for the Dutch Market
This update is about the Dutch narcotics law, the Opium Act (Opiumwet), and the European Novel Food Regulation (Regulation (EU) 2015/2283), as implemented in the Dutch Novel Food and Genetically Modified Foods (Commodities Act) Decree (Warenwetbesluit nieuwe voedingsmiddelen en genetisch gemodificeerde levensmiddelen).
As a general rule importing, preparing, processing, selling, delivering, supplying, transporting, having present and producing (products containing) THC into or in the Netherlands is forbidden. The main piece of legislation in the Dutch narcotics law is the Opium Act. As far as relevant for the purpose of this memorandum, it prohibits in articles 2 and 3 the ‘(sub a) importing into the Netherlands, (sub b) preparing, processing, selling, delivering, supplying or transporting, (sub c) having present and (sub d) producing of substances/plants mentioned in either one of two lists present in the Opium Act (list 1 being classified as ‘hard drugs’ and list 2 being classified as ‘soft drugs’). More on food law you read here.
Exemption under the Dutch Opium Act
One can obtain an exemption from this prohibition, under articles 6 and 8 of the Opium Act. The relevant authority for exemptions from the Opium Act, when dealing with cannabis, is the Office of Medicinal Cannabis (Bureau Medicinale Cannabis). The Minister of Health, Welfare and Sport (Minister van Volksgezondheid, Welzijn en Sport) can grant an exemption of articles 2 and 3 of the Opium Act for a maximum of five years (or a maximum of six months, when it concerns the import of narcotics into the Netherlands) (article 6, paragraph 2, of the Opium Act). The main exemptions are healthcare, scientific research, etc. These exemptions can only be granted in certain situations mentioned in article 8, paragraph 1, of the Opium Act. The Policy Regulation Opium Act Exemptions further explains these options for obtaining an exemption. In addition, an exemption can be granted if the applicant requires it for the cultivation of cannabis for an agreement with the Minister, for example for medical cannabis.
Policy towards THC and CBD in products
Technically, the import and sale of CBD-products is prohibited, regardless of the percentage of THC present in the product. The Office maintains a tolerance policy towards CBD oils and extracts with less than 0,05% THC. This indication was published upon a request for publication (WOB-verzoek) and therefore does not offer the same level of certainty as a policy that was published by the government ex officio. This 0,05% used to be a European maximum of 0,2% THC. Please note that the European maximum of 0,2% THC for the hemp plant still applies. The tolerance policy of the Office of Medicinal Cannabis has not yet been formalized.
Consequences of non-compliance with narcotics law
Articles 10 and 11 of the Dutch Opium Act specify that acting in violation of articles 2 and 3 of the Opium Act is a criminal offence and can be punished with up to six months of custody or a fine of up to € 20.750,-. When the violation were on purpose, these maximum punishments increase up to EUR 83.000. Law enforcement can be instigated by the prosecution office or by the competent authority, e.g. the Dutch Food Authority Nvwa.
Cannabis subject to Novel Food Regulation
The European Novel Food Regulation (Regulation (EU) 2015/2283) lays down rules for the placing on the market of novel foods. The Novel Food Catalogue lists all recognized novel foods. Recently, ‘cannabidiol’ has been added to the novel food catalogue, as founded by article 6, paragraph 1, of the Novel Food Regulation (Regulation (EU) 2015/2283). Article 4 of the Novel Food Regulation states that it is up to food business operators to verify whether or not the food which they intend to place on the market falls within the scope of the Novel Food Regulation. They must approach the Member State in which they first intend to place the (novel) food on the market in order to do so, which Member State may consult with the European Commission. You can read more here on Novel Food regulation in the Netherlands.
No policy for CBD or THC product
The Novel Food Regulation is supported by the Novel Food and Genetically Modified Foods (Commodities Act) Decree (‘Warenwetbesluit nieuwe voedingsmiddelen en genetisch gemodificeerde levensmiddelen’). This Commodities Act Decree prohibits the violation of several articles of the Novel Food Regulation, amongst which is article 6(2). It is therefore prohibited to place novel foods on the market that have been added to the union list. It is up to the national authorities of the Member States to design their own enforcement policy (in the case of the Netherlands, this is the Netherlands Food and Consumer Product Safety Authority (“Nederlandse Voedsel- en Warenautoriteit”). For products containing CBD or THC, the Novel Food Regulation forbids the sale, unless a permission is granted by the EFSA. No policy has been issued by this Authority so far. There is a validation from the European Commission (“EC”), and European Food Safety Authority (“EFSA”) for the dossier on synthetic CBD as a Novel Food.
Feel free to contact one of our cannabis and food lawyers on this subject.