CJEU excludes organic certification for foods containing CBD that are unauthorized in the European Union

Novel foods containing cannabidiol cannot receive European organic certification without the marketing authorization required by food legislation, the CJEU has ruled. The rule also applies to products intended for export. Compliance with organic production methods does not replace authorization of the food.

Foods containing cannabidiol (CBD) that fall into the category of novel foods cannot obtain European organic certification before their marketing authorization in the EU, the Court of Justice of the European Union has ruled. The judgment, delivered on 5 November following a dispute in France, also applies to products intended for export to third countries. For producers and certification bodies, the consequence is that agricultural origin and compliance with organic methods cannot replace the food safety and authorization requirements.

In brief

1.The CJEU established that a novel food unauthorized for marketing cannot receive European organic certification. Classification as a processed agricultural product intended for food use is not sufficient.

2.The dispute arose from a French professional association’s challenge to INAO instructions on the certification of food-grade CBD. The French court will resolve the case in accordance with the CJEU’s interpretation.

3.An export destination does not remove the authorization requirement. The Court seeks to protect consumer confidence and the reputation of organic certification both in the EU and beyond.

4.The judgment does not impose a general ban on hemp cultivation or on traditional seed products. These have a different food status from cannabinoid extracts and must comply with their own marketing and certification requirements.

5.The provisional safe intake level established by EFSA in February for certain CBD supplements does not constitute a marketing authorization. The assessment has strict conditions and does not allow safety to be established for people under 25, pregnant or breastfeeding women, or people taking medication.

Case C-495/25, Syndicat professionnel du chanvre, concerns the relationship between the rules on organic production and those governing novel foods. France’s National Institute of Origin and Quality (INAO) had informed certification bodies that products based on natural CBD, with the exception of hemp oil not enriched with CBD, and foods enriched with this substance could not be certified organic. CBD could not be included in the composition of certified foods either.

The professional association challenged the instructions, and France’s Council of State requested an interpretation from the CJEU. The initial instructions from 2021 also concerned hemp flowers and leaves. In 2023, INAO admitted the possibility of certifying these products, but the dispute over CBD intended for food consumption continued.

The Court distinguishes between classifying a product and the right to certify it. CBD extracted from hemp and intended for human ingestion may fall into the category of processed agricultural products intended for food use. This legal category also includes novel foods that have not been authorized. But classification alone does not confer the right to organic certification: the rules permitting the food to be marketed must also be complied with.

Under the regulation on novel foods, only products that are authorized and included on the Union list may be placed on the market as such or used in other foods, subject to the conditions of authorization. The category concerns foods that were not consumed to a significant degree in the EU before 15 May 1997 and that meet the criteria of the regulation. Classification does not mean that the product is automatically harmful, but that it requires authorization before marketing.

In the case examined, the classification of CBD as a novel food and the lack of authorization were not disputed. The CJEU states that the rules on organic production apply together with food legislation. Authorization of a novel food presupposes that the available scientific evidence supports the safety of its use, that the product does not mislead consumers, and that it does not create a nutritional disadvantage when replacing another food.

Organic certification also has a commercial effect: it promotes the product and conveys to consumers a positive image of quality and approval. Granting it to an unauthorized food could affect health protection and consumer interests, the judges explain. Consequently, the organic label cannot serve as a substitute for food authorization.

The French association had also invoked products intended for sale outside the EU. The Court rejected the idea that export would allow the certificate to be granted in the absence of European authorization. Such use could affect the reputation of the system and consumer confidence in the destination countries and in the internal market. The judgment establishes the condition for European certification without resolving all the separate rules applicable to exports or the marketing of CBD in other countries.

The scientific context remains important. In its assessment in February, the European Food Safety Authority (EFSA) established a provisional safe intake level for adults of 0.0275 mg of CBD per kilogram of body weight per day, approximately 2 mg for a 70 kg adult. This applies only to certain CBD supplement formulations of at least 98% purity, without nanoparticles, for which the production process is safe and genotoxicity has been ruled out.

EFSA indicated gaps concerning effects on the liver and the endocrine, nervous, and reproductive systems. For people under 25, pregnant or breastfeeding women, and people taking medication, safety could not be established. The provisional level is not a consumption recommendation and does not authorize the marketing of a product; applications are assessed individually, in light of the evidence and the conditions of the proposed use.

For the hemp sector, the practical distinction is between traditional seed foods and CBD extracts. Seeds, seed oil, and seed flour have a history of consumption in the EU and are not considered novel foods, the Finnish food authority explains. This status does not automatically extend to products enriched with cannabinoids. Traditional foods may be certified organic if they meet the applicable requirements; mere origin from an organic crop does not make an unauthorized food extract eligible.

The judgment concerns food and does not impose a general ban on hemp cultivation. Medicines, cosmetics, and other uses of CBD may be subject to distinct legal regimes, and permitted use in one category does not automatically authorize the substance as a food ingredient.

In Case C-663/18, decided in 2020, the Court held that the CBD examined was not a narcotic drug within the meaning of the relevant conventions and that national restrictions on marketing had to be justified by health protection, while respecting proportionality. The new judgment answers a different question: whether an unauthorized novel food can benefit from organic certification. The two legal issues are distinct.

The CJEU delivered a preliminary ruling, and France’s Council of State must resolve the national dispute in accordance with the interpretation established. This interpretation is also binding on other national courts facing the same issue. For companies in Romania and the other Member States, the practical rule is to verify the food status of ingredients before applying for certification: compliance with organic production methods does not replace the authorization required for the novel food.

https://2eu.brussels/ro/news/cjue-exclude-certificarea-ecologica-pentru-alimentele-cu-cbd-neautorizate-in-uniunea-europeana