Portugal: ASAE seized more than 4 million products and insists on CBD as a “novel food”, despite the Court deeming it “non-narcotic”

Ana Oliveira, Chief Inspector of the National Operations Unit of the Public Information Division of the ASAE – Food and Economic Security Authority, told Cannareporter that, in the last 4 years, 208 economic operators were inspected in Portugal, with the initiation of 31 countervailing proceedings and 18 criminal proceedings, with the seizure of 4.325.669 units and 74,6 liters of products, all with a total value of 133.898,81 euros.

Since the beginning of 2023, and as in previous years, the Cannareporter has received several reports of raids, inspections and seizures of hemp products in grow-shops and stores selling hemp products, from the north to the south of Portugal, not forgetting the islands. Confusion still reigns over this sector, not only in Portugal, but also in the rest of Europe.

In Portugal, there are already more than 100 stores that sell CBD and other hemp derivatives with less than 0,3% THC. Legal or not, products containing CBD are available to anyone, in authorized stores across the country, on Internet sites or in the illicit market, without any regulation or quality guarantee. And neither the government regulates and authorizes nor effectively prohibits it, leaving it to fall into a limbo that ends up harming all players in the industry, from producers to traders and, finally, consumers.

Although the European Court of Justice has already stated that Member States cannot prohibit the marketing of CBD and from to Portuguese Judiciary Police were forced to return 40 kg of industrial hemp flowers Patrick Martins, owner of Green Swallow hemp stores, it is not yet clear enough whether cannabidiol (CBD) derived from industrial hemp should be considered a “novel food” or not.

In any case, in November 2022, the director of the National Unit to Combat Narcotics Trafficking of the Judiciary Police (PJ), Artur Vaz, confirmed to Cannareporter that it was the Central Court of Criminal Instruction that ordered the return of 40kg of hemp flowers Patrick Martins, for having considered that they “are not narcotic”.

“Objects, plants and substances that were seized and that, according to the result of the judicial decision, cannot be considered as narcotics were returned. And we complied, naturally, with what was determined by the court”, said, at the time, Artur Vaz, from the PJ, in statements to the Cannareporter.

Lawyer João Nabais, who represented Patrick Martins in court, also stated that “it is necessary that all those intervening in justice bear in mind that hemp is a different plant from cannabis”.

However, and despite this court decision, stores selling hemp products in Portugal continue to be the target of recurring inspections and seizures, with dozens of occurrences being reported to Cannareporter during the first quarter of 2023.

ASAE insists CBD is “novel food”

In this regard, we questioned the ASAE on what type of actions it has been developing, how many stores were inspected and what type of products were seized, as well as the main infractions / irregularities detected in the sector, the reason for the seizures and the respective legal basis.

Ana Oliveira, Chief Inspector of the National Operations Unit of the Public Information Division of ASAE, responded to Cannareporter in a single text, which we transcribe in full here.

“Firstly, it is informed that the commercialization of foodstuffs with CBD is not allowed, and the extracts of Cannabis sativa prepared with the aim of concentrating cannabidiol, are considered novel foods and as such, in order to be marketed, they will require a safety assessment, within the scope of the novel foods regulation, which has not yet happened, so they cannot be used in foods, which also include food supplements.

It also refers that, according to Regulation (EC) nº 258/97, of the European Parliament and of the Council, of January 27, 1997, concerning novel foods and food ingredients, novel foods are defined as: “the food or food ingredients not used in a significant quantity for human consumption in the European Union before 15 May 1997”. Novel foods can be innovative or newly developed foods, foods using new production processes and technologies, as well as foods traditionally consumed outside the European Union.

The placing on the market of novel foods can only be carried out after a safety assessment has been carried out. Thus, the catalog of novel foods can be consulted on the website of the European Commission at: https://ec.europa.eu/food/safety/novel_food/catalogue_en. This catalog contains the substance Cannabidiol as not approved for consumption.

Having said that, we note that the Food and Economic Security Authority (ASAE), as a national administrative authority specialized in the field of Food Safety and Economic Surveillance, with powers of criminal investigation, has directed its action to ensure consumers that foodstuffs placed on the market do not endanger their safety and health and that their interests are defended by guaranteeing healthy and fair competition between economic operators.

In this sense, ASAE has been developing inspection actions on this subject at national level, aimed at physical commerce as well as online commerce, having registered as operational results in the last 4 years, the inspection of 208 economic operators, with administrative offense proceedings and also 31 criminal proceedings, with the seizure of 18 units, 4.325.669 liters of products, all with a global value of €74,6.

In the listed criminal cases, infractions for counterfeit foodstuffs due to the addition of unauthorized and damaged products or for the corruption of food or medicinal substances stand out, and in administrative infractions, they refer to lack, inaccuracy or deficiency in the labeling, the addition of that are not provided for in the general legislation in force, the marketing of food supplements with irregular labelling, presentation and advertising, non-compliance with rules on distance selling and marketing of food supplements, lack of prior communication to the competent authority for marketing food supplement, among others.

With regard to products containing CBD derived from hemp, it should be noted that all cannabis sativa/hemp plants are covered by the provisions of Decree-Law nº 15/93 of 22/01, which approves the legal regime applicable to the trafficking and consumption of narcotic drugs and psychotropic substances – Law nº 8/2019, 23rd amendment to Decree-Law nº 15/93, provides for the use of the cannabis plant only for medicinal purposes, in medicines, preparations and substances, with medical prescription.

The cultivation of different varieties of the plant Cannabis sativa L.. is allowed in the European Union, and is registered in the catalog of authorized agricultural plant species – Common Catalog of Varieties of Agricultural Plant Species – However, the content of tetrahydrocannabinol (THC) in the plant cannot exceed a concentration of 0,2. XNUMX%, which in practice means that only the Cannabis sativa hemp variety can be grown.

The European Commission considers that it is an authorized novel food, provided that the THC value does not exceed 0,2% (w/w), however it also considers that other specific legislation of each Member State regarding restrictions must be observed. placing cannabis on the market as a food or as an ingredient in food, as verified through the Union list. In this context and with regard to Cannabis sativa, to date, it is only possible for food consumption the following parts of the plant, as referred to in the DG SANTE catalogue: Seeds; Seed oil; Flour from seeds.

Finally, contact with the Directorate-General for Food and Veterinary Medicine is suggested, as this is the competent entity for monitoring authorized/rejected new foods.”