Food safety - Australia: Regulator considers permitting the sale of food derived from low THC hemp seeds

Food Standards Australia New Zealand (FSANZ) is calling for submissions in response to its draft variation of the Food Standards Code that would permit the sale of foods derived from low tetrahydrocannbinol (THC) hemp. The proposal follows a request by the Australia and New Zealand Ministerial Forum on Food Regulation (Forum) for FSANZ to consider how THC could be legally designated as food.

Presently, the Food Standards Code (Code) prohibits the inclusion of cannabis or derivatives in food products in Australia. The position is the same in New Zealand, save for hemp seed oil, which can be sold as a food product.

FSANZ’s proposed variation to the Code would allow for the sale of foods containing low THC Cannabis sativa seeds, as long as the seeds are nonviable and hulled, and contain no more than 5 mg of THC per kilogram of seeds. The sale of food containing the following products would also be permitted:

• Oil extracted from the seeds of low THC Cannabis sativa, if the oil contains not more than 10 mg of THC per kilogram of oil;
• A beverage derived from seeds of low THC Cannabis sativa, if the beverage contains not more than 0.2 mg of THC per kilogram of beverage;
• Any other substance that is extracted or derived from seeds of low THC Cannabis sativa and contains not more than 5 mg of THC per kilogram of the relevant substance.

In recommending an amendment to the Food Standards Code, FSANZ found that low THC hemp seeds do not present a public health and safety risk. FSANZ also noted that low THC hemp seeds are nutritionally dense, including being a source of omega-3 and polyunsaturated fatty acids.

The Forum requested FSANZ to provide policy advice about restricting the advertising of low THC hemp, particularly the use of cannabis leaf imagery and claims of psychoactive effects or links to illicit cannabis. FSANZ concluded that imposing advertising restrictions in the Code would not be appropriate, pointing to the lack of supporting research, the existing consumer law (eg, misleading or deceptive conduct provisions) and the experience in foreign jurisdictions. FSANZ also noted the possibility of additional legislative prohibitions on advertising in which it is claimed that hemp food products have psychoactive qualities, which would exist outside the Foods Standards Code.

FSANZ also considered whether it is necessary to impose a limit on cannabidiol (CBD), in order to distinguish food products from therapeutic goods. FSANZ concluded that imposing a CBD limit is not necessary, as a person would need to consume 24kg of hemp seeds per day to constitute a therapeutic dose – orders of magnitude more than would be possible. Further, FSANZ’s draft wording made clear that CBD-fortified products could not be used as a food ingredient.

The proposal follows two previous applications, submitted to FSANZ in 1998 and 2009, which also sought the legalisation of low THC hemp food products. These applications were both approved by FSANZ, but then rejected by the Forum due to concerns regarding law enforcement (such as road-side drug testing), CBD levels and mechanisms for marketing of low THC hemp food products. The approval of the Forum is a necessary prerequisite for the proposed changes to the Food Standards Code to become law.

Legalising hemp-based foods would bring Australia in line with Canada, the United States and the United Kingdom, amongst other countries that allow some hemp food products