What is a controlled drug, and how does it affect CBD products?
A controlled drug is a substance considered harmful to human health whose production, supply, and possession are strictly regulated under the Misuse of Drugs Act 1971 and the Misuse of Drugs Regulations 2001. These drugs are categorised into three classes (A, B, or C) based on their potential for harm, with Class A being the most dangerous.
Pure CBD, in its isolated form, isn't controlled under these laws. The legal difficulty arises because extracting CBD from the cannabis plant often means that the final product contains traces of other cannabinoids, most notably THC. THC is classified as a Class B controlled drug, and products containing it are strictly regulated.
To be legal for general sale to the public (ie not requiring a prescription), a CBD product must meet the strict exempt product definition set out in the Misuse of Drugs Regulations 2001. This means the THC content in the finished product must not exceed 1 milligram (1mg) per container or package.
If a product contains more than 1mg of total THC, its possession, production, and supply immediately become illegal unless specifically licensed by the Medicines and Healthcare Products Regulatory Agency (MHRA) or prescribed as a medicine. Businesses must rigorously monitor their entire supply chain, from sourcing approved industrial hemp strains to the final manufacturing process, to ensure strict adherence to this 1mg total limit.
What are the licensing requirements for CBD products?
CBD products made from hemp (a variety of the cannabis plant that contains less of the plant’s psychoactive compound tetrahydrocannabinol (THC) than other varieties) are legal but require licences to be advertised as medicine.
Hemp or industrial hemp in the EU and UK contains less than 0.2% THC and is, therefore, outside the remit of the UK’s Misuse of Drugs Act 1971. It is, therefore, perfectly legal to sell hemp-based CBD products. It is, however, illegal to advertise such products as medicine unless they are licensed by the MHRA.
As a result, many hemp-based CBD products are advertised as cosmetics or nutritional supplements rather than as medicines. There are, however, some niche retailers who legally produce medical-grade CBD oil with the appropriate licensing.
For more information, see the government’s hemp licensing fact sheet.
Can doctors prescribe CBD oil with higher THC levels?
In principle, CBD oil with more than 0.2% THC is available by prescription.
Since 1 November 2018, specialist doctors in mainland UK (excluding Northern Ireland) have been legally permitted to prescribe cannabis-based medicines with a THC content of more than 0.2%. This change moved cannabis-based medicines from Schedule 1 drugs (ie drugs without medical use) to Schedule 2 drugs (ie drugs with medical use). Schedule 2 already includes opioid drugs and other strictly regulated prescription drugs with narcotic potential (eg morphine, fentanyl, and oxycodone). Schedules 1 and 2 refer to the relevant schedules of The Misuse of Drugs Regulations 2001.
This change, however, has not satisfied campaigners, who have highlighted the fact that, in reality, there are numerous barriers to obtaining a legal prescription, rendering this change in the law largely ineffective.
Based on media coverage and activity on sites such as ‘change.org’, it seems reasonable to assume that the government will be placed under pressure to take further steps to make cannabis-based medicines more widely accessible. Given the international trend towards legalising cannabis-based medicines (or at least decriminalising them), it is entirely possible that this law may be updated, if not now, then at least in the near future.
For more information on who may be prescribed CBD oil and when, see the NHS’ website.
Is it still illegal to import CBD oil with more than 0.2% THC without a valid prescription?
In the UK, it is illegal to consume, possess, produce, or sell recreational marijuana. Cannabis products are only allowed on the British market if THC levels don’t exceed the 0.2% level, unless they are for medical purposes and prescribed by a licensed professional. As a result, it is important to keep in mind that importing CBD oils with more than 0.2% THC without a valid licence or prescription is illegal.
Such imports are at risk of occurring accidentally. For example, Poland allows CBD oil with a THC level of 0.3% to be grown and sold. However, if such CBD oil is imported into the UK (without a valid licence or prescription), this would be illegal.
What are the rules for making medical claims and advertising?
Standard advertising and trade description laws apply to legal CBD oil and other products.
As CBD oil has gained popularity, there has been growing concern that some vendors are misleading consumers about the quality of their products. For example, by over-emphasising the CBD content of hemp oil and thus implying that it is essentially the same as CBD oil. There have even been allegations of vendors infusing standard vegetable oils with some quantity of CBD and marking this as being equivalent to CBD oil.
These tactics are entirely illegal and are subject to the same penalties as any other form of misleading advertising.
However, more stringent advertising rules may also apply to cannabis products, depending on the product’s nature. Many products (eg food, food supplements, medicines, and e-cigarettes) are subject to sector-specific advertising regulations in addition to general advertising rules. These rules tend to be strict. For example, foods containing CBD oil (eg CBD gummies) must be authorised by the Food Standards Agency (FSA) as ‘novel foods’ (ie something that people hadn't widely consumed in the UK or the EU before 15 May 1997).
For more information on advertising CBD products, see the Advertising Standards Authority’s (ASA’s) guidance. For more information on advertising regulations in general, read Advertising regulations.
Do not hesitate to Ask a lawyer if you have any questions.
