Tuesday, September 27, 2022

CBD industry must protect consumers from international travel minefield

‘Contains nuts’ the label on my peanut butter jar helpfully tells me. While we may snort at this fine example of stating the obvious, and mutter about health and safety going mad, we live in a society in which there is the expectation that manufacturers and retailers will provide essential safety information to protect consumers. Some parts of the food industry have failed to do an adequate job in the past, with tragic results. Legislative change has followed. Last month, ‘Natasha’s Law’ (the UK Food Information Amendment 2019) came into effect in England, Wales, Scotland and Northern Ireland; it requires businesses selling ‘pre-packed for direct sale foods’ to provide full ingredients lists and allergen labelling on foods for sale on the premises. Pressure from outside the food industry, led by bereaved parents, has resulted in a change in the law. The CBD industry should take note.

Natasha Ednan-Laperouse, after whom the new law is named, died from anaphylactic shock aged just 15 in 2018 after she ate a sandwich from Pret A Manger which carried no warning of the sesame seeds it contained, and to which she was allergic. The coroner at Natasha’s inquest is reported as having criticised Pret for failing to alert customers to potentially fatal allergens. The BBC reported that there had been nine cases of sesame-related allergy incidents in the year before Natasha died, including six that involved ‘artisan baguettes’, according to a complaint log for the company. While EU regulations stipulated that sesame seeds (and 13 other allergens) needed to be listed on pre-packaged foods which were prepared and sold in different premises, food prepared in shop kitchens, such as Pret’s, did not have to be labelled with this information at the time.

Natasha’s Law, intended to protect consumers from allergens via clear labelling, has been brought about by parental, public and ultimately political pressure, following the death of 15 year-old Natasha Ednan-Laperouse—and the food industry is having to adapt

Sometimes there is a territory which lies between legal obligation and a moral responsibility to customers. Businesses can choose to communicate the legal minimum to their customers, or they can demonstrate their specialist knowledge of their sector, and their understanding of the risks relating to their products, and communicate that clearly to customers whether they are obliged to or not. 

Beyond the moral imperative, there is enlightened self-interest in intelligent communications about risk. Businesses which don’t demonstrate responsibility, and whose products cause harm or death, are likely to find themselves under scrutiny, on the receiving end of parental and public pressure, and ultimately subject to further regulation.

In the same month that Natasha’s Law came into effect, a young British man was convicted of drug-trafficking with intent to supply, and sentenced to 25 years imprisonment. The ‘drug’ in question was a CBD product…The jurisdiction was the UAE

In the same month that Natasha’s Law came into effect, a young British man was convicted of drug-trafficking with intent to supply, and sentenced to 25 years imprisonment. The ‘drug’ in question was a CBD product—four bottles of a vape liquid containing cannabis oil. The jurisdiction was the United Arab Emirates (UAE). Billy Hood, a 24 year-old football coach from Notting Hill, west London, had recently moved to the UAE when he was arrested last January after police found the vape bottles in his car. As with Natasha’s tragic story, the UK media has been full of Billy’s plight, and the desperation his mother is feeling. He is reported as claiming that the bottles had been accidently left by a friend from the UK who had visited him. An appeal hearing in Abu Dhabi court is scheduled for tomorrow, Tuesday 30 November.

A 25-year sentence for having a CBD product. The industry urgently needs to come up with ways of better communicating the risk of travelling with products which can legally be sold in the UK, but cannot be taken to some other jurisdictions. There is no legal obligation to communicate this risk, but we are in that territory beyond legal requirements, where responsibility is what matters.

Sometimes there is a territory which lies between legal obligation and a moral responsibility to customers

It is better that the CBD industry voluntarily puts in place clear messaging about travel risk, rather than being obliged to by public pressure and politicians. The capacity of parents to effect political change has already been seen by the medical cannabis industry. The mothers of epilepsy sufferers Billy Caldwell and Alfie Dingley, respectively Charlotte Caldwell and Hannah Deacon, were hugely influential in causing a change to UK law in November 2018, to allow for medical cannabis to be prescribed.

Some may argue that it is the traveller’s individual responsibility to ensure that they are only packing items that conform with their destination’s laws. For a product from an established industry, such as alcohol, that might be fair enough, but in such a young industry as CBD, there are multiple complications which mean that consumers need clear guidance. At the simplest level, consumers first need to know that there is a potential problem in order to ask the right questions. Once they know there are questions to be asked, they need to know where they can find answers. I’ve put myself in the consumer’s shoes, and had a go at trying to work out where I could travel with a CBD product. The results are not encouraging.

Starting with leading CBD brand websites and selling platforms, I tried to find travel advice. On the whole there was none at all. I found one honourable exception, but I won’t name it as despite some efforts at giving advice, there was some misleading information on the page, and it entirely failed to mention that taking CBD products to some countries could result in a prison sentence. It was also deeply buried on the website. I can’t claim to have made a comprehensive examination of the whole industry, but I looked at enough sites to draw the conclusion that this is a matter which the industry is not addressing properly in customer communications.

Staying within the CBD industry, I looked at the information about travelling with CBD products on offer from the nascent industry groups. I drew a blank on the sites of the Cannabis Industry Council, the Association of Cannabinoid Industries, and the Cannabis Trade Association.

Starting with leading CBD brand websites and selling platforms, I tried to find travel advice. On the whole there was none at all

A simple internet search asking where CBD is legal brings up all sorts of information, but I wouldn’t stake my liberty on any of it. There are contradictions galore. Take for instance, the UK’s second nearest and very familiar neighbour, France. The Alternative Airlines table of countries to which you can and can’t take CBD products lists France as “legal” with the limit of “a 0.2% maximum THC level”. By contrast, The Plain Jane blog notes “It is unclear whether CBD oil is legal in France… France stated that ‘the 0.2% THC limit principle exists in order to allow the use of hemp for industrial and commercial purposes’. This directive would seem to indicate that only CBD products with 0% THC are legal for sale/consumption, inconsistent with EU standards.”

The UK Foreign Office (FO) website is the obvious first port of call for travellers checking what they can and can’t take abroad. While you can check for advice on individual countries, you cannot do a general search about CBD. Continuing my research into our near neighbour, I found that FO information on France does not include any reference to CBD, but travellers can submit an enquiry, so perhaps that would yield results.

By contrast, the FO advice on travel to the UAE, where Mr Hood was convicted of drug-trafficking, is explicit about CBD in the local laws and customs section: “Some skincare products and E-cigarette refills may contain ingredients that are illegal in the UAE such as CBD oil. If found in possession of such products, they will be confiscated and you may face criminal charges.”

There is a link to the UAE Ministry of Health website from which you can access a document, Guidelines for Carrying of Personal Medicines with Travelers in to the United Arab Emirates. which states, “Drugs listed in Schedule IV of Narcotic Law 14 of 1995 of UAE cannot be carried by international travelers in to the UAE, even if their use is permitted in the country of departure.” Schedule IV lists “plants whose cultivation and possession are prohibited”with cannabis at no 1. “Cannabis, male or female, in all its designations, such as hashish, Kamanja, bangoo, etc.” The only exception is “Cannabis seeds which are roasted so as to definitely ensure non-germination”.

The offences and punishments are listed, and are of considerable seriousness. Within the document, “flagellation” and “execution” are mentioned, leaving no doubt that the justice system is different from the UK’s. In a world where it is difficult to work out where CBD is legal, the UAE’s position is easily accessed online and crystal clear—as long as you know that CBD is derived from cannabis.

Somehow the CBD industry needs to help its customers to use its products safely in a world with radically different legal and regulatory positions on cannabis products. 

Both the food and CBD industries have complicating factors to deal with. For the food industry this is on the micro level, with hidden allergens which the consumer wouldn’t see, such as the sesame seeds in Natasha’s bread, or similarly the gram flour (made from chickpeas) used in gluten-free ready meals as a substitute for wheat flour. For the CBD industry, the complications are on the macro level of international law. In both cases, consumers need to read the ‘small-print’, and the industries need to make sure that it is clear and comprehensive.

One of the difficulties with the legal status of CBD internationally is that key information was not known about it at the time when the United Nations (UN) convention was written, on which the drug laws of member states are based.

Cannabidiol (CBD) had been isolated in 1940 by organic chemist Roger Adams, but it was not until 1970 that a team of Israeli scientists led by Raphael Mechoulam discovered that it is not psychoactive.

The drug laws of UN member states are based on the Single Convention on Narcotic Drugs of 1961, (later amended by the 1972 Protocol) which pre-dates Mechoulam’s discovery about CBD. Cannabis and cannabis-related substances were originally included in schedules I (cannabis, cannabis resin and extracts and tinctures of cannabis) and IV (cannabis and cannabis resin) of the Single Convention. The drugs in schedule IV are of more concern, as the Convention outlines: “…the drugs in Schedule I are subject to all measures of control applicable to drugs under this Convention…” whereas “The drugs in Schedule IV shall also be included in Schedule I and subject to all measures of control applicable to drugs in the latter schedule, and in addition…A Party shall adopt any special measures of control which in its opinion are necessary having regard to the particularly dangerous properties of a drug so included; and…[if] the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except for amounts which may be necessary for medical and scientific research only, including clinical trials therewith to be conducted under or subject to the direct supervision and control of the Party.”

A decade-long review of cannabis and cannabis-related products was instigated in 2009 by the CND

In 2009, UN member states, through the UN Commission on Narcotic Drugs (CND), which is the policy-making body of the UN with prime responsibility for drug-related matters, made resolution 52/5. It requested the World Health Organization (WHO) Expert Committee on Drug Dependence (ECDD) to explore “all aspects related to the use of cannabis seeds for illicit purposes”. Within the list of concerns about illicit drugs, there is one positive paragraph: “Stressing the health effects of cannabis as reported by the World Health Organization in Cannabis: a Health Perspective and Research Agenda, published in 1997, which is the only international assessment of cannabis”.

ECDD is an independent advisory body to WHO. It initiated its ‘review of cannabis and cannabis-related substances’ in 2012, and in subsequent years considered what WHO describes as “the best available scientific evidence and data from member states”, finally submitting recommendations in 2019.

In the meantime, at its November 2017 meeting, ECDD had concluded that, “in its pure state, cannabidiol does not appear to have abuse potential or cause harm. As such, as CBD is not currently a scheduled substance in its own right (only as a component of cannabis extracts), current information does not justify a change in this scheduling position and does not justify scheduling of the substance. However, where CBD is produced for pharmaceutical purposes as an extract of cannabis, cannabis extracts and tinctures are included in the 1961 UN Single Convention on Narcotic Drugs.”

The same meeting noted that initial scientific research indicated some therapeutic value of CBD, though more evidence was needed.

In January 2019, ECDD submitted eight recommendations on cannabis and cannabis-related substances to CND. In March 2019 CND decided to postpone voting on the recommendations, to allow more time for consideration. Virtual meetings were held, attended by over 600 experts from more than 100 member states. Two intersessional meetings were held with representatives of the WHO, the International Narcotics Control Board (INCB) which is the independent and quasi-judicial monitoring body for the implementation of the relevant UN conventions, and the United Nations Office on Drugs and Crime (UNODC) which offers member states practical assistance and encourages transnational approaches to action tackling drugs, organised crime, corruption and terrorism.

The vote by CND was eventually held in December 2020, at its 63rd meeting. Of ECDD’s eight recommendations, only one was passed. It was that cannabis and cannabis resin should be deleted from Schedule IV of the 1961 Convention. The votes were 27 in favour, 25 against and one abstention. After over a decade of preparation and research, seven of ECDD’s recommendations were rejected.

The optimism expressed in January 2019 by Dr Tedros Adhanom Ghebreyesus, the director-general of WHO, wasn’t matched by the reception the CND gave to the eight recommendations he sent them, arising from ECDD’s review of cannabis and cannabis-related substances—only one was passed

One of the rejected recommendations was that “preparations considered to be pure cannabidiol (CBD) should not be scheduled within the International Drug Control Conventions by adding a footnote to the entry for cannabis and cannabis resin in Schedule I of the Single Convention on Narcotic Drugs (1961) to read ‘Preparations containing predominantly cannabidiol and not more than 0. 2 percent of delta-9-tetrahydrocannabinol are not under international control’.The vote was six in favour, 42 against and four abstentions.

If you want to get a snapshot of the vast spectrum of attitudes to, and concerns about CBD and cannabis around the world, try reading the questions member states put to CND, and which were answered by WHO, INCB and UNOCD.

Another layer of complexity to the international picture had been added a couple of weeks before the CND meeting. The Court of Justice of the European Union (ECJ) gave a preliminary ruling in a case involving KanaVape (a CBD vape brand developed by Catlab SAS) and the government of France on Thursday 19 November 2020. The request for a ruling had been made by the Court of Appeal, Aix-en-Provence. A summary submitted to the CND meeting by ECJ said the court was asked to examine “the question whether cannabidiol (CBD) is covered by the 1961 United Nations Single Convention on Narcotic Drugs, as amended by the 1972 Protocol.” The ECJ found as follows:

“The Court found ‘that a literal interpretation of the provisions of the Single Convention might lead to the conclusion that, in so far as CBD is extracted from a plant of the Cannabis genus and that plant is used in its entirety – including its flowering or fruiting tops – it constitutes a cannabis extract within the meaning of Schedule I of that convention and, consequently, a ‘drug’ within the meaning of Article 1(1)(j) of that convention” (point 71 of the judgment). 

“However, the Court considered that “since CBD does not contain a psychoactive ingredient in the current state of scientific knowledge […], it would be contrary to the purpose and general spirit of the Single Convention to include it under the definition of ‘drugs’ within the meaning of that convention as a cannabis extract” (point 75 of the judgment). 

“The Court therefore concluded that CBD is not a “drug” within the meaning of the United Nations Single Convention on Narcotic Drugs (point 76 of the judgment).”

Not named in the 1961 UN Single Convention on Narcotic Drugs, should CBD be considered a drug? The ECJ decided it shouldn’t—the month before the CND rejected the ECDD’s recommendations that preparations considered to be pure CBD should not be scheduled within the Conventions

In essence, WHO has recommended changes, CND hasn’t budged far, and ECJ has drawn its own conclusions. Added to that, INCB is in the process of developing its own ‘Cannabis Initiative’. In the US, cannabis and/or cannabis products are variously legal or illegal depending on which state you are in. EU member states have similarly diverse approaches. And then there’s the rest of the planet…

In essence, WHO has recommended changes, CND hasn’t budged far, and ECJ has drawn its own conclusions

This is not a world into which you can send a customer who has paid good money for a wellness CBD product, without warning them that dangers and legal complications may be ahead of them.

So, what can—and should—the CBD industry do? Clear messaging is needed—and it would not be hard to achieve.

The first step is to alert consumers that CBD products are not legal in all countries. A message to this effect should appear on the product, on selling websites and marketing materials, and maybe also in the small-print of adverts. It needs to warn consumers to check before they travel. 

The second step is for businesses to carry regularly-updated travel information on their websites, listing the countries in which CBD products are legal. 

It is a shame that there is not yet a stable, established trade body for the CBD industry. Keeping abreast of the changing international picture, and giving members and consumers easy access to that information, is the sort of exercise that a trade body could do very well.

Brands may feel that this sort of warning does not chime with the image of wellness—and perhaps luxury—that they are trying to convey, but when it comes to health and wellbeing it is an advantage to brands to be seen as responsible and reliable. This is particularly true for an industry which is trying to push past the negative associations of cannabis with international drug crime, and establish CBD as beneficial and therapeutic.

The euphemistic three letters of ‘CBD’ may be a useful way of putting some distance between wellbeing products and associations with illicit drugs, but they do carry a danger. The person packing a sponge bag in a shared bathroom for their trip to sun themselves in Dubai may not realise that CBD is derived from cannabis when they borrow their sister’s favourite CBD moisturiser. Two years ago, I knew what CBT was, what the CBI did, but would have drawn a blank at ‘CBD’, even though I was well-aware that cannabis had medical and therapeutic qualities.

Come on CBD industry! Get the message—check before you travel—to your customers, loud and clear, and help keep them safe.

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