Tuesday, September 27, 2022

FSA’s approach is no joke for CBD white-label industry

“When is a door not a door?” goes the old joke. “When it’s a-jar,” is the side-splitting reply. We could update it to ask, less pithily, “When is a CBD product-which-is-allowed-to-be-sold not a CBD product-which-is-allowed-to-be-sold?” To this the Food Standards Agency (FSA) might quip, “When it has a different brand name (though the self-same product is on sale right now in a shop near you!)”

The FSA’s approach to the white-label CBD industry continues to baffle businesses and trade associations. Even though a product made by a white-labeller is included in the FSA’s public list as ‘awaiting validation’ or ‘validated’ (and so able to be sold, legally, in the UK), if it is now given a new ‘badge’, it can’t be sold. This has prevented white-label companies taking on new clients, and also from enabling existing clients to expand their offering by adding other ‘public list’ items to their range.

CBD Business News asked the FSA if this apparent anomaly is going to be corrected, or will those white-labellers continue to be unable to sell those products to new brands during the long authorisation process?

“We wouldn’t consider this an anomaly,” replied a spokesperson for the FSA today. “Our guidance has been consistent since we announced a deadline to submit novel food applications for CBD products already on the market.”

If a branded product wasn’t on sale on 13 February 2020, it cannot be sold now, even if the product itself is on sale under other brand-names.

The core question appears to be, “When is a product a new product?” While the industry might judge that a product by any other name is still the same product, the FSA takes a different approach, based on the brand name: 

“The white-labeller can continue to sell its product to companies, but if a new brand tried to put a label on the bottle and introduce a new brand then that would be a new product line, so not allowed”

Food Standards Agency

“A validated application is not sufficient to put new products on the market. To be added to the public list, applicants have to prove that specific products were on the market on 13 February 2020. The white-labeller can continue to sell its product to companies, but if a new brand tried to put a label on the bottle and introduce a new brand then that would be a new product line, so not allowed.

“To bring a growing market into compliance, it was necessary to restrict new products and the rebranding of existing products to restrict the expansion of an unregulated market. We believe this is a pragmatic and proportionate approach—we gave the industry over a year to submit applications and continue to support the industry through dialogue with applicants and wider business engagement.

“Once an application is authorised it may be sub-licensed and rebranded without the need for the new brand to make their own application, but until that time no new CBD extracts, isolates or associated final products using this novel ingredient, including new brands, should be put on the market until they have the necessary authorisation.”

“The company is disappointed with this development and will continue to engage with the FSA given its ingestible products are identical to products which are entitled to remain on the market.”

Cellular Goods

Cellular Goods, the UK brand which uses lab-based cannabinoids, has taken a different view from the FSA on this issue, as statements released over the last few weeks have indicated. In December 2021 the brand extended its range beyond its original Look Better skincare products, launching three ingestible CBD products.  These formulations were manufactured and supplied by Galway-based Chanelle McCoy Health (CMH), developers of the Pureis Ultra Pure CBD food supplement. CMH’s products were included in the FSA’s first published list of validated applications in February 2022. Cellular Goods argued that this validation should be applied to its branded version of the same product in a statement released on Monday 11 April:

“The FSA list as of 31 March 2022 does not include Cellular Goods, however, this is not necessary in order for the products to remain on the market. The company fulfils FSA guidance as this is not a ‘new product to market and all the FSA required details are clearly stated on the labelling such as product name (Pureis®), legal address, product code and supplier which is the same as that of the validated CMH products featured on the FSA list.”

Two days later, Cellular Goods issued an “update concerning its communications with the FSA with regards to its ingestibles range. The FSA’s current position is that any new products not on sale before February 2020 are not eligible for the public list and therefore should not be available for sale… Cellular Goods is currently considering its position pending advice from the company’s advisers and is also seeking further clarification on the FSA’s stance, considering that these products are identical to the validated products from CMH.”

By Friday 22 April, Cellular had had to take its ingestible products off the market, as the next statement outlined:

“Further to the announcement of 13 April 2022, the company has now received correspondence from Trading Standards and has agreed to suspend sales of its ingestibles range with immediate effect. The company is disappointed with this development and will continue to engage with the FSA given its ingestible products are identical to products which are entitled to remain on the market.”

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