Hemp-based foods to be legalised in Australia

May, 2017

Ministers have approved a decision by the food regulator to permit the sale in Australia of foods made from low-THC hemp seeds and hemp seed oil – however, other legal hurdles remain. Partner, Dr Teresa Nicoletti and Lawyer, Sebastian Tonkin discuss.

The Australian and New Zealand ministers responsible for food regulation have approved a recommendation from Food Standards Australia New Zealand (FSANZ) to allow the sale of low-THC hemp seeds and hemp seed products as foods in Australia. This decision means it is now likely that hemp-based foods will be available for sale in Australia by the end of the year, but it also highlights the need for all regulators to take a reasonable approach to the regulation of low-THC cannabis.

Background

Hemp seeds and hemp seed oil from low-THC cannabis plants have none of the narcotic or psychoactive effects associated with illicit cannabis, and are commonly sold as food and food ingredients overseas, including in the USA, Canada, Germany, the UK, the Netherlands, Belgium, Switzerland and Austria. Dietary groups have noted the nutritional value of hemp seeds, which contain substantial protein, vitamins, minerals, and omega-3 fatty acids.

However, in Australia, cannabis has been listed as a “prohibited plant” in Schedule 23 of the FSANZ Food Standards Code (Code), alongside toxic plants like deadly nightshade, the St Ignatius Bean, Patterson’s curse and the Apple of Sodom. This had the effect that no part of the cannabis or hemp plant could be sold as, or present in, food.

The decision

The ministerial forum has twice before rejected proposals from FSANZ to permit the sale of hemp foods. On this occasion FSANZ was specifically requested to address some of their concerns – including that hemp foods might send a confused message about the acceptability and safety of illicit cannabis and pose problems for drug law enforcement (e.g. by interfering with random drug testing).

Changes in the approved proposal (P1042 – Low THC Hemp Seeds as Food) include the following:

Even with these additional restrictions, the decision will be a boon for the Australian industrial hemp industry, as well as for consumers. However, even once the Code is amended, other regulatory issues remain.

Low-THC hemp generally

We have previously discussed the ongoing issues with the Poisons Standard scheduling of cannabis and THC. Importantly, the most recent interim scheduling decision by the Secretary of the Commonwealth Department of Health would, among other things:

It is immediately obvious that the above restrictions are completely inconsistent with the FSANZ decision and will need to be reconsidered if hemp foods are to be lawfully supplied in Australia. However, the interim scheduling decision also gives rise to a deeper inconsistency – the Commonwealth is on one hand approving hemp-based foods, but on the other proposing to essentially prohibit other hemp products (e.g. cosmetics) .

All regulators should follow FSANZ’s lead by looking past the stigma associated with illicit cannabis and considering the potential benefits to consumers and the Australian economy of low-THC hemp products.

Contact Mills Oakley

For further information, please contact:

Teresa Nicoletti

Dr Teresa Nicoletti 
Partner | Intellectual Property, Health and Life Sciences
T: +61 2 8035 7860
E: tnicoletti@millsoakley.com.au

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