Confusion between hemp, cannabis and seed oil – problem, opportunity or false advertising?

Creams and facial masks with CBD, 'Hemp' serums and dietary supplements with “Cannabis Sativa L.”. More and more brands and supermarket chains are launching “cannabis” products, which often only contain hemp seed oil or crushed hemp seeds. When These brands and chains advertise their products, talk about the benefits of medicinal cannabis, giving misleading information about the properties of the products they sell and even about the effects of the plant. Is this opportunism, marketing or a lack of knowledge on the part of those who create the content?

The problem is not new, but there is no end in sight. Five years ago, in May 2019, CannaReporter® published a long report about the confusion that reigned in Portugal with medical cannabis, CBD and hemp seed oil. A confusion that persists and is revealed in the campaigns that some brands launch taking advantage of the cannabis “fad” and in the content that is published on the most diverse channels. But misinformation or marketing strategies, in addition to confusing consumers, can also violate the Advertising Code.

This type of commercial actions by big brands, however, tends to go unnoticed and without any implications for those responsible, while the owners of hemp stores experience constant raids from the authorities with large seizures of products and the initiation of criminal proceedings. We wanted to understand how the authorities react when these campaigns appear and understand the methods of control and inspection of these products, both when they are sold by big brands and when they are sold by small traders.

CBD is not regulated in Portugal

Um study at the University of Beira Interior published in June, revealed “critical deficiencies” in the labeling of CBD products sold in Portugal. Of the 31 samples of products that announced they contained cannabis, “significant discrepancies in the labeling” were found and in most of the products analyzed “the concentrations of cannabinoids were below those announced on the label”, in addition to not containing information about their concentration.

A few months ago, the Canna Foundation, a Spanish organization dedicated to the study of cannabis, published the results of a study dedicated to analyzing the composition of over-the-counter CBD creams. Between 2021 and 2023, they analyzed 15 creams that advertised and said they contained CBD both in pharmacies and specialized stores. They carried out blind analyzes and concluded that most products do not specify the percentage of CBD (only 40% do) and of the 6 that declared it, only 1 corresponded with the results obtained. They also concluded that the vast majority contain small or residual amounts of this cannabinoid. “In 8 creams, the CBD concentration (mg CBD/mg cream) was extremely low, with concentrations between 0,00 and 0,73 mg CBD/mg cream (which assumes a CBD content of less than 0,073 % by weight/weight in the 8 creams). The CBD concentration of the rest (7 creams out of 15) is between 0,17% and 1,11% weight/weight”, says the report.

In May of this year, a CBD store received a visit from Food and Economic Security Authority (ASAE), which seized 845 units “of foodstuffs, namely gins, biscuits, lollipops, chewing gum, gums, chocolates and teas that contained an unauthorized substance in their composition – cannabidiol (CBD)”. The value of the seizure amounted to 1960 Euros. A criminal case was opened against the owner “for counterfeit abnormal food and for the addition of an unauthorized substance”.

At the end of January, another small business owner of a CBD store received a notification from ASAE with a fine relating to a “random inspection” of his online store, due to the information he had in the description of several herbal infusions with hemp. . Because he said that plants had certain beneficial properties for health, as seen on so many websites, he was charged with an administrative offense that could range from 1700 to 3 Euros.

Around the same time, the Italian supermarket chain Aldi published two leaflets in Portugal in which they advertised various hemp-based food supplements (Cannabis sativa L.) for sale in its stores, accompanied by information on the medicinal properties of cannabis, some of the most used cannabinoids and the importance of the Endocannabinoid System. In the texts signed by nutritionist Mafalda Rodrigues de Almeida it was said that cannabis “has several constituents, the best known are tetrahydrocannabinol, also known as THC (a constituent of marijuana with hallucinogenic properties) and Cannabidiol (CBD), without any hallucinogenic effect”.

Although there are strains of cannabis whose potency can cause mild hallucinations when consumed in high doses, the plant is known, studied and used for its “psychotropic” or “psychoactive” properties – that is, altering the Psyche or mental states –, and not by causing visions or hallucinations. This effect is due to the action of THC on the CB1 receptors that we have in the brain (part of the Endocannabinoid System of many living beings) to which both the endocannabinoids that our body produces and the plant's phytocannabinoids bind. THC is one of the rare phytocannabinoids known to have the ability to alter consciousness.

Photo: Blog200porcento.com

Despite health claims, Aldi says products only have “powdered hemp seeds”

After being questioned regarding the contents, Raquel Rodrigues, responsible for external communication at Aldi in Portugal, assured CannaReporter® that the texts were written by the nutritionist, “who used the terminology she considered appropriate to the topic, and aimed to make a brief introduction to what C isannabis sativa, which is present in the composition of the four products we highlighted.” The person responsible also explained that “in their formula, it is possible to find powdered hemp seeds”. And she concluded, saying that “we regret that some of the text in the leaflet was less clear or confusing, as our purpose was to present some of the benefits that these products have.” According to Rodrigues, the products in question are not in the brand's “fixed assortment”, being just a temporary offer.

However, while both hemp seed oil and the seeds themselves have nutritional properties, they do not fall within the scope of “medical cannabis”. For example, seed oil has an ideal ratio of Omega 3 and 6 (3:1) and is very rich in linoleic acid; and the seeds are rich in Vitamin E, iron, calcium, magnesium, potassium and an excellent source of fiber and vegetable protein. But medical cannabis deals with a completely different chemical universe. Its richness lies in the phytocannabinoids (and terpenes, flavonoids...) contained in the trichomes that the unpollinated flower of the female plant produces. Not in the seeds, therefore.

Ignorance, exploitation or misleading advertising?

Given that the plant is the same – Cannabis sativa L. – and that the name appears on the box of Aldi products, it may even have been the recurring confusion between hemp and cannabis and the lack of knowledge that led to the publication of that information. However, the fact is that the information about cannabinoids and the endocannabinoid system published in Aldi leaflets does not actually apply to the product they advertise and sell. Could it then be considered misleading advertising?

In Portugal, the Advertising Code (DL no. 330/90, of October 23) determines the following:

"Article 10

Principle of veracity

1 – Advertising must respect the truth, not distorting the facts.

2 – Statements regarding the origin, nature, composition, properties and conditions of acquisition of the advertised goods or services must be accurate and capable of being proven, at all times, before the competent authorities.

Article 11

Misleading publicity

“1 – All advertising that is misleading is prohibited under the terms of Decree-Law no. 57/2008, of March 26, relating to unfair commercial practices by companies in relations with consumers.

2 – In the case provided for in the previous paragraph, the entity competent to investigate the respective administrative offense proceedings may require the advertiser to present evidence of the material accuracy of the factual data contained in the advertisement.”

Article 19 of the same law assigns supervision powers to ASAE; and article 21 determines that “violation of the provisions of articles 4 to 12 constitutes a serious economic offense, punishable under the terms of Legal Regime for Economic Administrative Offenses (RJCE). "

Depending on the nature and severity of the action and the measures taken by the offender to mitigate the faults, whether it is a recurring practice or not and the size of the advertising company, among others, fines can range from 500 Euros to 90 thousand Euros; or up to 2 million Euros if “information on the offender's annual turnover is not available”. If there is more than one agent, everyone is responsible and subject to the same sanctions.

One of the RTP news of December 2023 informed that, only in that year, “The Directorate-General for Consumers (DGC) inspected 2.583 advertising messages in digital media, (…) which resulted in the imposition of 180.000 euros in fines, mainly for misleading advertising”.

This same entity, the DGC, which aims to protect consumers, on its website identifies this type of advertising as advertising “'miracle' goods or services, which exploit the credulity, superstition and fear of the recipients – these being “mostly presented as having guaranteed effects on the well-being and health of potential consumers, allowing the treatment of, among other diseases, obesity and sexual dysfunctions, altering physical characteristics and appearance, without any scientific proof being presented for this. ” Keep this in mind.

“Institutions are always passing the buck to each other”

Again, this is not the first time that the CannaReporter® e other ways information about this type of practices. Since 2019 there has been several cases similar. But if this is not allowed, what do the responsible authorities do in these types of cases?

CannaReporter® questioned all the bodies involved when it comes to the sale of cannabis and hemp-related products. THE Infarmed – National Authority for Medicines and Health Products IP, who is responsible for the medical cannabis department, responded to us that “the advertised products are food supplements, which is why ASAE and DGAV are responsible for supervising them, despite the fact that they are products based on the cannabis plant and In advertising, curative or disease-preventive properties are claimed.”

A General Directorate of Food and Veterinary Medicine (DGAV), for its part, stated that it was not aware of the Aldi leaflets and explained that these situations “are reported to the competent supervisory authority, which is ASAE, which will assess the situation and act accordingly.”

In response to the various questions posed by CannaReporter®, ASAE limited itself to responding: “Regarding the above subject [questions related to ALDI products and other supermarkets], it is informed that the Food and Economic Security Authority is monitoring the matter within the scope of its competences.”

Despite the insistence that we try to understand how they were following the matter and what they were doing in these cases, ASAE did not respond again. During the approximately three weeks that we waited for a response from DGAV and ASAE, all that remained was the difficulty in communicating with the competent institutions and their lack of transparency when responding to consumer queries.

After the July ASAE Announcement, to be announced at a seizure of cannabis products in a store in Porto, we contacted the entity again, having managed to speak with Ana Maria Oliveira, Chief Inspector, who explained to CannaReporter® that “brands are not obliged to inform [this authority]. If it is a new supplement, they are obliged to inform DGAV, even if it is temporary, but not ASAE”.

In any case, brands or companies that launch and sell products most of the time do not inform the authorities and they only act when there is a complaint or through the regular inspections they maintain, whether random or not.

In the case of a complaint, they investigate and follow the procedure stipulated by law or regulations, according to the situation found.

“Cannabidiol (CBD) extracted from the plant is not an authorized ingredient for food or cosmetic purposes”

Na Information Circular “Use of cannabis and its derivatives in cosmetic products”, published by Infarmed in February 2022, expressly states:

“The inclusion of CBD or other cannabinoids, which exist naturally in the cannabis plant, is not permitted, as they are obtained through the preparation of extracts or tinctures of Cannabis or its resin.

They are included in this prohibition the substances “Cannabidiol – Derived from Extract or Tincture or Resin of Cannabis ” and “Cannabis Sativa Leaf Extract”. These designations appear in COSING5 but their inclusion in cosmetic products is not authorized. The use of substances/preparations obtained from plant seeds with a THC content ≤ 0,2%, such as cannabis seed oil, from varieties registered in the Common Catalog of Varieties of Agricultural Species, are exempt from this prohibition. ”

However, “other sources of CBD that are not covered by Annex II of Regulation (EC) No. 1223/2009 on cosmetic products, but which are under analysis by the European Union and the World Health Organization, are excluded. ” In these cases, its use in cosmetics “must be analyzed on a case-by-case basis and always requires a safety assessment”, they explain.

In the aforementioned regulation there is no specific mention of cannabidiol or its derivatives, but item 306 of Annex II identifies: “Narcotics: all substances listed in tables I and II of Single Convention on Narcotic Drugs, signed in New York on March 30, 1961” as prohibited substances. Now, one of the substances included in table I is, in fact, “Cannabis, cannabis resin, cannabis extracts and tinctures”.

To be able to sell any cosmetic on the Portuguese market, it will have to comply with the requirements of that same regulation, as well as the provisions of Decree-Law No. 189/2008, of September 24.

Then, the manufacturer must register it on the European platform Cosmetic Product Notification Portal (CPNP) and then “register with Infarmed” through the applications SRE COS – Cosmetic entity registration system e SRCT – Revenue management and fee collection system, according to the Resolution No. 15/CD/2013.

Although following the Kannavape case The European Court of Justice ruled that cannabidiol (CBD) extracted from the cannabis plant should not be considered a drug under the Single Convention (ECJ C-663/18), in Portugal national legislation prevails.

But actually, there are several products on the market containing CBD. It is easy to find them in pharmacies, some classified as food supplements and others as cosmetics. For example, the ointments for relieving muscle pain Fisiocrem Cannabis or Bliss CBD, are registered as cosmetic products (with VAT 23%), and their authorization is the responsibility of Infarmed. Both mention “Cannabidiol Extract (pure CBD)” in their composition and none of the packages indicate what type of CBD they contain, nor the percentage of this cannabinoid.

And on the website Portuguese Pharmacies, Fisiocrem Cannabis, for example, appears with the following Description: “Fisiocrem Cannabis is a cream with cannabidiol, hemp seed oil [sic], arnica, St. John's wort and vanilla extract. It stimulates skin microcirculation and generates a heat effect, enhancing the action of active constituents.”

We questioned the brands and Infarmed again about the legality of these products. The answer did not arrive.

The fact is that while these products appear and disappear from the shelves, there are small business owners who are being systematically harmed due to the dubious situation of CBD and cannabis/hemp products. And, at the same time, consumers are systematically being misinformed or misled, for whatever reason – even due to the legal status of products that are marketed for a certain purpose. In fact, everyone knows that consumers look for them for other reasons, often linked to health.

Incense, collectibles and other fallacies

Then, on the other side of the spectrum from the big brands and supermarket chains, there are those small traders, owners of CBD stores, who usually work with hemp products that may contain both CBD and hemp seeds or other cannabinoids, from Delta -8-tetrahydrocannabinol (a synthesized cannabinoid from the plant, with a milder effect than THC) to Hexahydrocannabinol (HHC), a semi-synthetic that is already being banned in some countries due to adverse effects; or even synthetic CBD. Keep this information in mind.

But the information available in ASAE website (which needs updating, as it also states that the maximum THC allowed for hemp is 0,2%, when the law in force since January 2023 updated it to 0,3%) states that “in relation to the use of cannabinoids, namely cannabidiol (CBD) and delta-9-tetrahydrocannabinol (THC), cannabigerol (CBG), cannabinol (CBN) and others, used in foods, like plant parts and their extracts, are considered new unauthorized foods ( COM, 2019), with no significant and safe consumption history being demonstrated in the European Union before May 15, 1997. Therefore, the marketing of foods containing these substances is not authorized.”

It is not authorized, but as explained by Henrique Pinto, owner of the head shop and CBD Chlorophyll 560 store, it is possible to sell products containing these cannabinoids, because the labels say they are not for consumption. “To have flowers you don’t need a license – because flowers are considered a “collectible object” and the labeling has to say that they are not for consumption. Therefore, you just need to have the appropriate CAE for what you are going to sell and you can sell it”. In relation to seeds for animal and human food, any type of business can sell them, but as it is food, “you already have to pay a Hygiene and Safety company”.

With edibles, things get complicated. “Edibles that say CBD but call for something medicinal, ASAE takes everything”, says Henrique. Even though they do not have any mention of being a medicinal product, the supervisory entity is demanding with edibles.”

“If the CBD is synthetic, then it can be used”

Ricardo (fictitious name), manager of a well-known chain of CBD stores and who prefers not to be identified, confirms precisely this. Since they opened, they have already received three visits from ASAE, the last in the summer of 2023, and all “focused on food and labeling”, he says. “They never asked for anything special or specific, CBD oils were never controlled, they never asked us for anything. Their focus is on food.”

In this field, recalls the person responsible for the stores, they wanted to know “if the foods had cannabinoids or not – to see if it was a new food or not, and if it was synthetic CBD or not, because the European Union has an exception: if the CBD is synthetic, so it can be used. The rest was the labeling”, he says.

Some of the problems may even be due to the authorities' lack of knowledge and lack of training. There are traders who complain about this: “The agents themselves don't even know what they are looking for because they don't have the training or the necessary information to know what they are looking for and what they are controlling”, says Ricardo.

The problem is that synthetic cannabinoids, several studies have revealed, can be much more dangerous than cannabis. per se and have already created some problems, because they conflict with our Endocannabinoid System. But not being banned (in Portugal) and taking into account the strong demand for products to alter consciousness, it is pulled from the legal void.

Even if you meet all the requirements, there is always something to pick up

Cannabidiol (CBD) is classified at European level as a “novel food”. However, it is not yet approved under the new food regulations to be considered 100% legal. And that is where Portuguese law and authorities (DGAV, ASAE, Infarmed, police) are based to ban this substance in our country.

For Ricardo, “there is a great lack of knowledge about what can and cannot be done. There is a contradiction and a lot of gray. If, on the one hand, you have a United Nations directive (from September 2020) that says that CBD is not a psychotropic substance, it is not controlled; then we have to say that it is prohibited here.”

In terms of labeling, there are certain requirements that must be met, otherwise they may result in the seizure of products and criminal offences. All labels and packaging must be written or translated into Portuguese, indicate the composition of the product, and if it contains cannabinoids, indicate the respective percentage. In this regard, given that the oils are for aromatherapy and the flowers are considered collectibles or incense, it is not clear why this is mandatory. But according to Pedro, the fictitious name of another trader who also declined to be identified: “CBD is collectible – you don’t have to have [the percentages]. But now ASAE has started to treat it as if it were a food product – having to comply with the rules for food products, which, according to information, are in the European regulation – where cannabis is not listed.”

What is in the European Regulation on food labeling is the following:

Article 22.

Quantitative indication of ingredients

1. Indication of the quantity of an ingredient or a category of ingredients used in the manufacture or preparation of a food is mandatory if that ingredient or category of ingredients:
2. a) They appear in the name of the food or are habitually associated with the name by the consumer;
3. b) Are highlighted on the label by words, images or a graphic representation; or
4. c) Are essential to characterize a foodstuff and to distinguish it from products with which it could be confused due to its name or appearance.”

Therefore, in products that are foodstuffs, if the packaging mentions cannabis (even if it only has the leaf, which is equivalent to the “image” in paragraph b), CBD or other cannabinoids, then you will have to say what percentage of the substance .

In the experience of cannabis stores, “whether flowers, oils or edibles”, says Henrique, “if they have CBD, they have to indicate the amount of CBD per gram”. And for all products that contain cannabis or hemp (parts or by-products) they must have the respective certificates with their records and plant identification, in which the cannabinoids present must be specified: “THC values ​​(below 0,3%), other identified cannabinoids, the Deltas (HHC and Delta-8, but Delta-7 and Delta-9 must be specified), as well as the producer for the flowers and oils. However, there is no need to analyze pesticides — not in Portugal, but at European level yes, given that the flowers are for collection and not for consumption,” he explains.

Taking all this into account, a recurring question arises: how can these stores exist if the use of CBD is illegal? Henrique’s response is clear: “We are in limbo…”. In other words, technically, these stores do not sell products with CBD for food and cosmetics. The indication on the labels is that they have other purposes, therefore, the products they sell are perfectly legal. What people do with them is not the responsibility of traders, just as those who sell knives are not responsible for what customers will do with them afterwards.

Small traders and large supermarket chains: Double standards?

At the beginning of this year, the owner of a hemp products store made several statements to the media and did not want to be identified, so we will call him Pedro. After a random inspection, he received an administrative offense because of his online store. Infringements were detected such as “misleading the consumer” due to the listing of some benefits associated with tea, and “lack of provision of pre-contractual information”, which has to do with the indication of shipping costs and expected shipping dates and arrival.

In Portugal, on the Continente supermarket website, when looking for a term of comparison, you can read about the Hibiscus Tea they sell: “A type of tea that is highly sought after for its antioxidant properties and the benefits it provides for health”, explaining at length why it “promotes cardiovascular health” and “contributes to the relaxation of blood vessels, which helps prevent and control high blood pressure”, as well as “contributes to the reduction of LDL cholesterol and the increase in cholesterol”. good' (HDL)” and “acts in the prevention of diseases and infections”, among other things. This case and Aldi are just two examples, but there are many others.

It is true that both ASAE and the authorities in general play their role as supervisors, controlling thousands of situations and products. However, when these fall on small business owners and traders who do everything they can to have their products and establishments in order and often stumble upon regulations that leave room for dubious interpretations or situations in which there appears to be double standards , a feeling of injustice prevails that seems difficult to contain.

Taking into account the limited financial capacity of many of these entrepreneurs and the hole that these fines or criminal proceedings represent, there have been situations in which the authorities' actions have buried their businesses. In some cases, like the one at Green Swallow stores, only to later prove that the punishment was unfounded, and in most cases to end in nothing, other than legal costs for those involved and for the Portuguese State.

Of the four entrepreneurs that CannaReporter® contacted, three preferred to remain anonymous, which shows that the community is afraid to speak out. The testimonies we heard focused on the fact that anyone who expresses their disagreement with the status quo and with the current legal framework, it ends up suffering reprisals in the form of more frequent “random” visits and inspections by the authorities. These sometimes involve criminal proceedings and always end in fines – usually for minor faults that, as we have already seen, occur in so many products and websites. “ASAE takes notice of these little things: the way products are advertised, how they are exposed to the public, the labeling: Sales to minors under 18 are prohibited, in PT we have to write that it is hemp flower; etc.”, says Henrique.

Many traders have no problems, but others are the systematic target of inspections, in which ASAE resorts to any failure to issue fines, without giving advance notice or deadlines for making the necessary amendments.

As we witnessed while trying to prepare this report, the Portuguese authorities are very inaccessible: we waited more than a week for a response from DGAV and Infarmed, we spent days calling ASAE, always until the call dropped, and we were never answered in any of the options. . The authorities excuse themselves in vague answers, focus on their different responsibilities, refer to other departments that do not respond, and issue decrees and regulations that leave journalists, citizens and businesspeople with more questions than answers. This was our first-person experience.

While the CBD situation remains in this limbo and there is randomness in inspections, leading to double standards, the losers are the consumers and patients who resort to these products.

Photo: Blog200porcento.com

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Article edited on August 14, 2024.

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* Margarita Cardoso de Meneses adopts the new spelling agreement.