Is the party over for consumer CBD products in the UK? – John Binns and David Hardstaff write for The Big CBD Magazine

Is the party over for consumer CBD products in the UK? – John Binns and David Hardstaff write for The Big CBD Magazine

BCL partner John Binns and Associate David Hardstaff’s article titled ‘Rocking the boat – is the party over for consumer CBD products in the UK?’ has been published by The Big CBD Magazine.

Here’s an extract from the article:

Why the sudden panic?

Near the end of a cold, grim January in the UK, the Minister of State for Crime and Policing, Kit Malthouse MP, wrote to the Advisory Council on the Misuse of Drugs. He was asking for advice in relation to consumer CBD products, noting that there has been a proliferation of CBD products online and on the high street in recent years.

Reflecting longstanding Home Office policy, the letter continued, “While as an isolated substance CBD is not a controlled drug, there is recent evidence that many of the products available contain controlled cannabinoids, and that it is difficult to isolate pure CBD.”

What does the law say?

CBD is, indeed, not a controlled drug in the UK.  But the position of the Home Office is that it is difficult to extract pure CBD from cannabis without any trace element of THC. Despite this, surprisingly, law enforcement have until now shown a degree of tolerance when it comes to CBD products containing small, trace amounts of THC. This has allowed businesses to thrive, and the industry to become a visible and respectable presence on the high street. You might struggle to find fresh fruit and veg, but you won’t have any difficulty finding CBD infused dog popcorn.

Making the law work for CBD

A reliance on certain legal exemptions has until now been used by businesses to argue that where products contain less than 1mg of THC in each product (or ‘preparation’), they do not require a licence to be possessed and supplied. Does this amount to using a crowbar to force these provisions to work for the CBD industry? Maybe. Critics may say that the exempt product provisions were designed to facilitate scientific and diagnostic testing, not to enable consumer products to bypass the licensing regime.

Clarity at last…?

On one hand, the minister’s intervention may be welcomed by many in the CBD industry, who have called for greater clarity on the legal status of products containing trace elements of THC. On the other hand, his letter risks rocking the boat, and disturbing what until now has been a sort of gentleman’s agreement between the Home Office, law enforcement, and businesses. It risks playing into the hands of those who say law enforcement have simply been turning a blind eye to CBD products, many of which, on a strict reading of the law, contain controlled drugs, possessed and supplied without licence.

This article was originally published by The Big CBD Magazine on 09/02/2021. You can read the full version on their website.

John Binns is a partner at BCL specialising in all aspects of business crime, with a particular interest in confiscation, civil recovery and money laundering under the Proceeds of Crime Act 2002 (“POCA”). His business crime experience includes representing suspects, defendants and witnesses in cases invoking allegations of bribery and corruption, fraud (including carbon credits, carousel/MTIC, land-banking, Ponzi and pyramid scheme frauds), insider trading, market abuse, price-fixing, sanctions-busting, and tax evasion. He has coordinated and undertaken corporate investigations and defended in cases brought by BEIS, the FCA, HMRC, NCA, OFT, SFO and others.

David Hardstaff is an associate solicitor at BCL specialising in criminal and regulatory law. He advises individuals and companies in relation to controlled drug licensing and AML/Proceeds of Crime considerations in the context of the domestic and international cannabis market. He has particular experience in advising and representing individuals accused of sexual offences, drugs offences and offences involving violence. He is an experienced police station representative and advocate and represents clients in a broad range of proceedings at the Magistrates’ Court, Crown Court and Court of Appeal.

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