It was supposed to be straightforward. At the start of April, the Food Standards Agency released its public list of CBD products with credible applications to be authorised as novel foods. The purpose was to show which products could remain on sale, by virtue of their plans to show they could be safely consumed. 

For anything excluded, the FSA said it expected local authorities and retailers to prioritise their removal. And while it advised Trading Standards officers to “take a proportionate approach to enforcement”, and accepted the necessary timeframe for ranges to be adjusted, the message was clear.

But as the agency was saying this in public, some brands had noticed a hidden problem. As the European Industrial Hemp Association noted, the list contained “some inaccuracies, inconsistencies and indeed a few surprising absences”.

Some brands are absent because they had not met the criteria. To get on the list, a product had to be on the market by 13 February 2020, have an application filed by 31 March 2021, and have made sufficient progress towards being authorised – most notably by having a plan to provide toxicology data to the FSA.

But other brands were excluded simply by mistake, as the FSA told them within days of the list being published. On 4 April, the agency told CBDfx, which makes gummies, oils and other edibles, that its products would be added to the public list by the end of that week. Carlo Buckley, Europe MD for the brand, believes hundreds of peers were in a similar position.

A fortnight has since passed, and no products have been added to the initial list of 3,500. The official advice remains that excluded products should be removed from sale. And with affected brands trying to reassure retailers of their compliance, the FSA has yet to acknowledge the problem.

“My hope was that they would rectify it quickly – and failing that, issue an immediate statement saying that the published list did not include all the products that should have been on there for whatever reason,” says Buckley. “Retailers should have heard about this from the horse’s mouth rather than from brands.”

Who could disagree? In the FSA’s own words, the list was published “so that local authorities, retailers and consumers can make informed judgments about what they stock and buy”. That only works if the list accurately reflects which products should still be on sale. Right now, it doesn’t.

When asked about the apparent discrepancies, FSA policy director Rebecca Sudworth said: “We are currently reviewing queries and new evidence from businesses about the status of their products on the public list.

“If there are any changes to be made, we will update the list.”

In the meantime, brands missing from the list are already feeling the pain, as are the retailers confused about what they can actually sell. And for companies that had genuinely failed to meet the FSA’s requirements, and thus should be removed from the market, all this confusion has provided a temporary smokescreen. 

All of this is to the cost of the intended beneficiaries. Shoppers rely on retailers to only stock safe products, and on regulators to punish those breaking the rules. In its haphazard handling of the public list for CBD products, the FSA has undermined the foundations of the very market is was seeking to legitimise. 

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