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Regulatory Uncertainty – why the ACMD may not have appreciated that their recommendations could destroy the UK consumer CBD market

07/03/2022

Edward Henry KC and Jade Proudman consider the Advisory Council on the Misuse of Drugs (ACMD), ‘Consumer cannabidiol (CBD) products report’.

As long ago as January 2021, the Home Office (‘HO’) announced its intention to establish a legal framework for consumer Cannabidiol (‘CBD’) products. It outlined this proposal in a commissioning letter to the Advisory Council on the Misuse of Drugs (‘ACMD’), the independent expert body responsible for advising Government on drug-related issues. Evidence was called for, and as part of its brief the ACMD formed a Working Group which reviewed the scientific literature, consulted with industry, analytical laboratories, and issued a public call for evidence. These efforts came to fruition in December 2021 when the ACMD delivered its report.

The long-awaited report has caused some considerable consternation in the CBD industry, not least because it made ominous reference, in passing, at paragraph 2.6, to another aspect of its brief, when stating that the HO had

“…. also asked for the ACMD to reword the exempt product definition to apply only to diagnostic equipment or for scientific research, thereby unambiguously excluding consumer products and any products intended for human consumer other than in scientific research – this will be covered by a separate piece of advice.”

In view of that hand grenade being casually thrown into an early paragraph, it is understandable that industry players read on with some considerable anxiety. Having read to the end, the report is a bit of a ‘curate’s egg’: the good bits are the recognition (previously endorsed by the National Police Chiefs Council (‘NPCC’)) that CBD consumer products do not represent any risk in relation to the recovery of controlled cannabinoids, and that CBN is not psychoactive. In view of this, it seems entirely sensible to remove CBN from the MDA/MDR, harmonising the UK’s approach with that of Europe and in turn reflecting the position adopted within the UN’s Single Convention on Narcotic Drugs 1961.

Unfortunately, there are some recommendations which are less than scientific, but seem instead to be so massively risk averse that the consumer CBD sector is at risk of being put out of business by them. 

Take the recommendation that instead of a Recommended Daily Allowance (‘RDA’) the amount of CBD, and THC within it, is to be calculated by an individual serving. Calculation by individual serving is impractical, and unenforceable. More importantly, there is real uncertainty as to what the weight of an individual serving might be, across different products, and the effect, depending upon bio availability, of the route of administration.  All imponderables, requiring further consultation, creating further regulatory uncertainty, complexity, and delay. The industry ought to send a clear and unambiguous message back to Government: RDAs for CBD as an OTC preparation, with an acknowledgement that within such an RDA of CBD, an acceptable % of THC not to exceed a certain factor will inevitably be present. The amount of THC to be found within the RDA of CBD should (we suggest) not exceed 2.5 mg per day, which has been described as a ‘placebo’ level dose according to independent research commissioned by the European Industrial Hemp Association (‘EIHA’).  

The ACMD has made entirely legitimate observations on the problems of ‘over labelling’ and ‘under labelling’ (not the terms used in the report, but our shorthand.) The mischief attending the former is a straightforward issue of consumer protection as a Trading Standards Offence if the customer were being cheated. Understating the level of THC, the latter mischief, brings with it even more troubling consequences. If the product might contain a rogue amount of THC, far exceeding that specified on the bottle, it could quite possibly cause a consumer to experience psycho-active effects, or drive whilst under the effect of the compound, oblivious to the fact that their blood plasma level of THC had exposed them to criminal liability.

The ACMD’s solution to these mischiefs, however, if establishing a benchmark of a maximum of 1mg of THC subdivided into a quantity per individual serving is drastic. This is hardly a counsel of perfection, as the amounts are so low as to be unworkable, even defeating the most sensitive calibration of existing diagnostic equipment. Such proposals are not feasible. The table in the ACMD report at 5.21 is eloquent proof that this approach is entirely impractical:

The proposals concerning the limit of 1mg THC, are not strictly scientific [e.g., ACMD at paragraphs 5.1 and 5.11] but have the flavour of a ‘suck it and see’ bar of fudge. No explanation, which might withstand scrutiny, has been provided to justify this arbitrary amount. By giving disproportionate weight to a theoretical risk, the real certainty of the UK’s CBD industry being fatally wounded has now been arrived at. Rather than blaming the ACMD for this situation, the industry must reflect on its own inability to articulate to Government not only ‘what good looks like’ but why Whitehall should, from now on, be persuaded of their proposals.

The industry’s failure to get the message across is all too evident: the ACMD seems not to have appreciated that their recommendations, if adopted, could inflict fatal injury to the UK CBD market.  The reason for this momentary miscalculation is not difficult to appreciate. The call for evidence would have invited a chorus of discordant (some no doubt cacophonous) voices (the CIC, CMC, CTA, APPG, ACI, CDPRG, etc. etc.) which has the potential for confusion. The resulting ‘babble’ may have distracted the ACMD in its efforts to find a workable solution. A workable solution, however, can only be arrived at by recognising an acceptable level of commercial, consumer and societal risk, the determination of which is the responsibility of Government alone. Government must make the big judgement calls, and a lot is riding on this one.

A proportionate decision, impregnable to judicial review or criticism, would accommodate not merely commercial interests, engaged in satisfying genuine and growing consumer demand, but also embrace the example of other jurisdictions, underpinned by the research conducted by responsible bodies, such as the EIHA. Hemp flours, proteins, snacks & oil derived from seeds, for example, include a host of non-psychoactive THC precursors and other seed-derived THC compounds, which (when aggregated) would exceed the ACMD’s proposed limit, causing chaos; and food supplements, such as existing CBD oils (either composed by isolate CBD or from full spectrum extracts) may well already contain higher levels of THC than that now suggested, yet have been consumed without untoward incidents for years, with no adverse effect.

If the current proposals are pursued, this would amount to a policy of disguised prohibition, and the ACMD would have no need to address the discrete issue (previously referred to in their report at paragraph 2.6) of rewording the exempt product definition to exclude CBD in consumer products. Prohibition would create the far more insidious mischief of a ‘black market’, together with political unpopularity. Philosophically, it would run counter to freedom of choice, consumer sovereignty, and personal autonomy, which is long established in an individual’s lawful consumption of caffeine, vitamin supplements, traditional herbal remedies, alcohol, and nicotine. Moreover, this course of action would deny Government the substantial political advantage (even acclaim) of supporting a fledgling industry of huge diversity, capable of generating multi-disciplinary commercial opportunities, vast tax revenues and job creation (often in deprived areas) during the most challenging economic climate to be seen in decades.  

The CBD industry has had to live with regulatory uncertainty, being forced to tread water in a holding pattern, for far too long. With each passing year, instead of nurturing the prospects, and enjoying the benefits of a potential multi-billion-pound industry, bureaucratic inertia continues to stifle precious opportunities to grow, attract investment and create jobs. The future is clear – encouraged by Government, investment goes where it’s most wanted, and where it’s most likely to generate the highest returns. Is that in the UK or Europe? Currently (but hopefully not for too much longer) the UK has given the impression of hampering the CBD Industry. If the industry responds with grace, acknowledging its partial responsibility for the current confusion, we anticipate that Government will respond positively, alive to the vast promise this sector can bestow, and whose growth it must encourage, accelerate, and support in the decades to come.

Declarations of Interest:

Jade Proudman is a former social worker. She is the founder and CEO of the Premium CBD brand Savage Cabbage, and is Global Brand Ambassador for Charlotte’s Web, the oldest, and perhaps the largest and most respected CBD brand on the market. Curiously enough, she is not legally permitted to tell the remarkable story of her physical recovery (from a constellation of serious medical conditions) but is a huge believer in the power of CBD.

Edward Henry KC sits on the Board of Savage Cabbage and holds stock. He also represents, without fee, children who have been diagnosed with severe treatment resistant epilepsy, many of whom have experienced a dramatic reduction in their symptoms following the oral administration of whole plant natural extract CBD oils.  Edward is currently trying to assist their parents in obtaining NHS prescriptions for this privately funded therapy, which has (in those individual children’s cases) been proven to be effective.

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