By Deej Sullivan
In recent years the market for Cannabidiol (CBD) products in the UK has expanded rapidly. It is now perfectly possible to buy anything from CBD tinctures, to oils, to ready-to-use vape pens from an ever-growing number of websites. Some are even available on the high street.
There's a widespread perception that these products are legal. But are they? Producers and suppliers of CBD products will tell you they are since CBD itself is not currently scheduled by the Home Office, and is therefore not covered by the Misuse of Drugs Act. The fact that many of them have been operating for years unopposed by law enforcement would seem to back this claim up. But even now, they could be on decidedly shaky legal ground.
The case for the defence rests largely on a widely circulated email sent by the Home Office in response to a query about the legal status of CBD chewing gum. In it, a Home Office spokesman confirmed that CBD is not covered by the Misuse of Drugs Act 1971 or the Misuse of Drugs Regulations 2001. As such, the email explained, any product containing CBD alone is not illegal.
But straight away there was a caveat – should the product contain any substance (such as another cannabinoid) that is controlled by the MoDA, it would at the very least require a license.
This should perhaps have rung alarm bells in the heads of those selling CBD products in the UK, but judging by the continued growth of the industry, it did not. Since the publication of this email some 3 years ago the assumption has been that because CBD is not a scheduled drug, any CBD product is necessarily legal. But this is a dangerous assumption to make.
As confirmed to me by the Home Office in a response to a Freedom of Information Act Request, should a CBD product contain even the tiniest amount of THC, then by law: "a Home Office licence to import this substance – or a preparation containing it – would be required, irrespective of the proportion of THC in that preparation. In addition, there may also be a requirement for a Home Office domestic possess [sic] and supply licence."
It seems highly unlikely that many – if any – producers or sellers of CBD products have such a license, despite it being highly probable that their products will contain trace amounts of THC at the very least. In theory then (and more importantly, in law) it would appear that a significant proportion of CBD products sold in the UK are operating in, at best, a legal grey area. At worst, they are illegal.
Since the introduction of the Psychoactive Substances Act, another problem has arisen. In all of the discussion surrounding the Act, CBD was barely mentioned. This is probably due to the generally accepted wisdom that CBD, unlike THC, is not psychoactive, and would therefore not be covered by the Act. The final wording of the Act, however, may throw even that into question.
As was much discussed during the Psychoactive Substances Act’s progression through Parliament, the government’s definition of psychoactivity that "A substance produces a psychoactive effect in a person if, by stimulating or depressing the person's central nervous system, it affects the person's mental functioning or emotional state," was about as vague as it could possibly be. It could conceivably have covered incense, the smell of flowers, or nutmeg, for example, were it not for the creation of specific exemptions for the things the government didn’t actually want to ban.
Despite its absurdity, it could at least have been argued that CBD was not covered by this definition. However, after the Act came into force, the Home Office very quietly released guidance to the police and courts which included another alternative definition, which had been previously suggested by the Advisory Council on the Misuse of Drugs but rejected.
The new definition reads: "A substance produces a psychoactive effect in a person if, by stimulating or depressing the person's central nervous system, it affects the person's mental functioning or emotional state; as measured by the production of a pharmacological response on the central nervous system or which produces a response in in-vitro tests qualitatively identical to substances controlled under the Misuse of Drugs Act 1971, and references to a substance’s psychoactive effects are to be read accordingly."
This added detail is vital when considering the legal status of CBD. When trying to figure out whether or not a certain drug or product is covered by the Psychoactive Substances Act, there are three checks that need to be done.
Firstly, does it fall under any of the specific exclusions from the Act set out by the government? It could possibly be argued that some CBD products are foodstuffs, but in itself, CBD does not appear to be excluded.
Secondly, is it covered by the Misuse of Drugs Act, as that Act would supersede the PSA? As explained above, and confirmed by two separate Home Office sources, CBD is not.
Finally, is it psychoactive? Under the original definition, it could certainly be said that CBD is not. However, with this new addition, it seems unarguable that CBD does fall under the Act’s definition. CBD, of course, acts on the body’s endocannabinoid system, activating the same receptors as the drug THC.
Taking all of the above into account then, it appears that businesses producing or selling CBD products are breaking one law, if not two. And yet no raids have taken place, no doors have been unceremoniously divorced from their hinges, and no one has been prosecuted.
Why not? Well, one explanation is that the Home Office are simply unaware that an illegal industry is blossoming in full sight. This seems unlikely, but could be explained by the unavoidable flaw in the Psychoactive Substances Act which is that its wording is so vague, and its aims so unclear, that nobody – especially the police – really has any idea how or when to enforce it.
An alternative explanation could be that the Home Office are fully aware, but have chosen not to act. Remember that even before the introduction of the Psychoactive Substances Act, some if not most CBD products were already very likely being sold without the license required by law. For them not to have realised this fact would amount to serious levels of incompetence, even for a government department.
Whatever the case, the Home Office have clearly failed to do their job. Most sensible thinking people would not begrudge the fact that an absurd law has not been enforced, but maybe that’s the point. Any test case against a CBD seller would draw attention to both the absurdity of a law which even the department who wrote it and are tasked with enforcing it don't understand, and the truly arbitrary nature of our drug law enforcement.
Such a test case would have to have one of two outcomes. Either the Home Office and the government would be forced to shut down a burgeoning industry which is causing no harm to individuals or society, something which next to no one would consider sane and sensible, or, alternatively, they would be forced to admit that even with the help of the ACMD, they have failed utterly to come up with a workable definition of what it actually is they want to ban.
The first option would hardly be unprecedented. After all the Home Office were perfectly happy to ban Khat despite its relative safety. But it would, and should, cause further outcry at the banning of a non-harmful and potentially therapeutic drug, as well as at the Psychoactive Substances Act itself.
The second option would undermine the integrity of the Act and could lead to a raft of changes which finally bring the concept of relative harm into the discussion, potentially lifting the ban on the huge range of mostly benign plants which became illegal to sell on May 26th.
Whichever outcome ends up being the case, the fact that the Home Office has been so ineffective in its ability to uphold the laws that it itself pushed for and produced, is a huge scandal.
Deej Sullivan is a journalist and campaigner from the UK. He regularly writes on drug policy for volteface.me, London Real, and many others, and is policy & communications officer at Law Enforcement Against Prohibition UK. Follow him on Twitter.
The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners