Who: The Advertising Standards Authority (ASA)
Where: United Kingdom
When: 26 June 2020
Law stated as at: 6 July 2020
What happened:
The ASA has recently published new guidance on the advertising of cannabidiol (CBD). The guidance makes it clear that if a advert makes medical claims about CBD then the ASA will consider the product to be medicine and require a marketing authorisation from the Medicines and Healthcare Products Regulatory Agency (MHRA).
Further, the ASA endorses the Food Standards Agency (FSA) position on CBD. This means that any foods that contain CBD will require novel food authorisation, which in practice means submitting a credible application for novel foods authorisation by the FSA’s deadline of 31 March 2021.
The guidance also reminds advertisers that cosmetics regulation could also be relevant to the advertising of CBD if the product is designed for topical application.
Why this matters:
The guidance itself is simply a summary of the current legal position and references the position of other key regulators so in some ways does not represent any significant change. However it is part of a wider trend of UK and EU regulators clamping down on CBD and making it clear that the historic perception that the product was largely unregulated is now considered outdated – at least by the regulators.
The regulators’ position is increasingly that CBD may not be sold or, by extension, advertised without authorisation from a regulator be that a marketing authorisation from the MHRA or a novel foods authorisation by the FSA. In principle, this is simply paperwork but, in practice, the barriers are much more significant. No such authorisations have been granted by the FSA and MHRA has only approved one product as of earlier this year. The application process in both cases is extremely onerous and normally take years rather than months. The process is also very expensive and therefore outside the financial reach of many of the small manufacturers of CBD.
The announcements by the European Food Safety Authority (EFSA) and the FSA have been a particular blow to the CPD industry because the requirement to have a novel food authorisation will cover all products which are intended to be “ingested”. This potentially covers not just products which are obviously food such as CBD spiked gummies or sweets is but also drops or anything else which is intended to be ingested but falls outside of medical regulation.
By adopting the position of the other regulators the ASA is making it much more difficult for manufacturers of CBD to advertise their products which contributes to the overall difficult trading environment for CBD manufacturers.
