Member Article

Maximum levels for contaminants in food: THC in hemp seed

We want our food to be safe. Regulation 1881/2006 of 19 December 2006 therefore sets maximum levels for certain contaminants in foodstuffs. Products containing contaminants exceeding these levels should not be placed on the market. This applies to the products as such, as well as those mixed with others or used as an ingredient. The contaminants and their maximum levels are set out in the Annex to Regulation 1881/2006.

Commission Regulation 2022/1393 of 11 August 2022 amends the annex to Regulation No1881/2006 on food contaminants, now adding maximum levels for THC in hemp seeds and products derived from it. The EU regulator worried that exposure to traces of THC may pose a health concern and considered it appropriate to harmonize the maximum levels throughout the Union. The amendment applies since 1 January 2023.

Hemp seeds have a history of consumption in the EU – they are thus not a novel food – and are praised for their nutritional value. The seeds come from thecannabis sativaplant. They are commonly referred to as “hemp seeds” rather than “cannabis seeds” to signal that they originate from a cannabis plant with very low levels of THC – the principal psychoactive constituent of cannabis. The seeds may contain trace amounts of THC because THC is a natural constituent of the plant.

EU harmonization puts pressure on conservative national food laws such as the Belgian Royal Decree of 31 August 2021

Products that are linked to the cannabis plant often face controversy. As we have pointed out before, cannabis is a loaded term. It can refer neutrally to the cannabis sativa plant but the same word is also used to describe a psychoactive drug most commonly known as marijuana (among other names). National regulators struggle with the conceptual confusion, which has resulted in (overly) conservative laws. The current regulation of hemp seeds in Belgium is a good example.

Under the Belgian Royal Decree of 31 August 2021, it is prohibited to produce and place on the market foods that contain parts of the cannabis plant. The Belgian Federal Government (FSP Health) has explicitly stated that hemp products with low THC levels, such as hemp seeds, fall under this broad prohibition.

A company wanting to market hemp seeds in Belgium has to request a derogation from the federal authorities on the basis of a toxicological and analytical dossier.Ifa derogation is granted, then it only applies to one batch. Companies that fail to obtain a derogation, will see their products removed from the market.

Belgium’s strict prior approval process for hemp seeds is questionable from an EU law perspective. By harmonizing THC-limits within the food contaminants framework, the EU Commission has sent an implicit but clear signal that hemp seeds are just like other foods. THC levels – like other contaminants – should be within the defined limits and compliance is monitored through sampling and official controls (on the new rules for official controls in the food contaminants space, which also apply since 1 January 2023, see here and here). Belgian law, however, applies an inverse logic: hemp seeds are a prohibited food and subject to prior authorization. This setup makes it costly and difficult to market hemp seeds in Belgium, arguably in contravention of the EU legislator’s intent to put an end to the internal market fragmentation. EU law, however, has primacy over national law. If the Belgian Royal Decree remains unchanged, then it can be challenged on this basis.

The EU regulator has decided to harmonize the maximum levels for THC in hemp seeds throughout the Union within the food contaminants framework. The new rules apply since 1 January 2023. In this way, the EU Commission has sent an implicit but clear signal that hemp seeds are just like other foods and should be treated as such within the single market. This puts pressure on (overly) conservative national food laws such as the Belgian Royal Decree of 31 August 2021, which treats hemp seeds as a prohibited food simply because they originate from the cannabis sativa plant.

If you would like any further information about this legal development, then please contact Bregt Raus.