One Step Forward, Two Steps Back – A Plea to Health Canada To Improve the Regulatory Regime for CBD Products

One Step Forward, Two Steps Back – A Plea to Health Canada To Improve the Regulatory Regime for CBD Products

October 7, 2019 By

The Canadian Health Food Association (CHFA) and the Canadian Hemp Trade Association (CHTA) released a white paper on the “Smart Regulation of CBD” calling for the federal government to remove CBD from the Prescription Drug List (PDL). Many other industry stakeholders agree with the sentiment of the white paper, that Canada’s restrictive approach to CBD is out of step with approaches in other jurisdictions.

The restrictive regulation of CBD is not reflective of its extremely low-risk profile. Typically, substances on the Prescription Drug List carry a certain risk that requires physician oversight. Therefore, CBD health products that make health claims are currently accessible with a prescription only. On the other hand, cannabis products with CBD are available through recreational retail channels, but cannot make any health claims. Under the Cannabis Act, it is prohibited to make any health claims on cannabis products that are available without prescriptions. CBD products that are available at recreational retail stores are not allowed to be labelled or marketed for their therapeutic value.


Canada has established itself as a world leader in the emerging cannabis industry, but the restrictive approach to CBD is holding Canada back from competing in overseas markets. CBD products are available on store shelves across Europe and the United States. As of December 2018, CBD derived from hemp (cannabis plants with less than 0.3% THC) became federally legal in the U.S.


The Agriculture Improvement Act of 2018, otherwise known as the “Farm Bill”, created great opportunities for hemp farmers across the U. S. The bill changed the definition of cannabis in the Controlled Substances Act to specifically exclude hemp and hemp derivatives. This means that hemp derivatives extracted from the flowering buds of hemp plants could now be extracted and used to create CBD oil for use in a variety of products.


At this time, Canada still does not differentiate between cannabis and hemp derivatives. The definition of hemp in Canada restricts the use of the plant parts to seed, grain, and stalk. These parts of the plant contain no cannabinoids. As a result, only hemp seed oil is permitted to be manufactured by industrial hemp farmers and is available for sale on grocery store shelves.


CBD, unlike its psychotropic cousin THC, is non-intoxicating and non-addictive. It is important to distinguish these cannabinoids in the regulations and allow for a relaxed framework around CBD that would position Canada as a world leader in the rapidly growing self-care and wellness market. If CBD was regulated in accordance with its low-risk profile, it would create immense opportunities for hemp farmers and herbal health product manufacturers.


Industrial hemp farmers can grow hemp that is rich in CBD but cannot process the flowers on site. The flowering buds must be packaged for bulk sale and sold as biomass to licensed cannabis processors, authorized under the federal Cannabis Act to manufacture cannabis products. Furthermore, products that contain CBD, even if extracted from hemp, are considered cannabis products that can only be sold through licensed retail establishments.


The over-regulation of CBD products is preventing the public from accessing products that are vetted and reliable. Currently, they are easily available for purchase on the black market with no regulatory oversight. As a result, Canadians are left with great uncertainty as to the potency, purity, and cleanliness of CBD wellness products purchased through unlicensed channels. Many potential CBD consumers don’t want to enter a recreational cannabis store to obtain these products.


One small step was made on June 19th, 2019, when Health Canada launched a public consultation for Cannabis Health Products (CHP). This is a proposal for a new framework that would allow for licensed cannabis products to make health claims. The idea behind this proposal is to loosen the regulations around accessing cannabis health products so that they would no longer require a prescription and physician oversight. This is a small step in the right direction but does not go far enough.


For example, the proposal suggests restricting the sale of these CHPs to licensed recreational cannabis retail stores as the only acceptable point of sale. This does not align with consumers’ desire to purchase CBD-derived health and wellness products as over-the-counter items. If Canadians cannot access CBD products on store shelves next to other products with health benefits such as cod liver oil, they will find alternative ways to purchase unlicensed products.


Health Canada welcomed feedback from the public which was open until September 3, 2019. The industry eagerly awaits the outcome of the public consultation and how it will impact regulations moving forward.