EU harmonizes THC limits in hemp seed (food) as from 1 January 2023 – Update Belgium

The EU regulator has harmonized the maximum levels for tetrahydrocannabinol (THC) in hemp seeds throughout the Union within the food contaminants framework. This EU harmonization puts pressure on conservative national food laws such as the Belgian Royal Decree of 31 August 2021, which treats hemp seeds as a prohibited food. The situation in Belgium, however, is changing to better align it with EU law.

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

In our blog post of 4 January 2023, we addressed the then recent EU harmonization of the maximum levels for THC in hemp seeds within the food contaminants framework (Commission Regulation 2022/1393 of 11 August 2022).

We commented that this new piece of EU law, which has applied since 1 January 2023, puts pressure on conservative national food laws such as the Belgian Royal Decree of 31 August 2021. Under the Belgian decree, it is prohibited to produce and place on the market foods that contain parts of the cannabis plant. The Belgian Federal Government (FSP Health and Food Safety Authority) 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 can request a derogation but (i) the process is burdensome and (ii) if a derogation is granted, then it only applies to one batch.

The EU Commission has sent a clear signal that hemp seeds are just like other foods. This is at odds with Belgium’s batch-per-batch prior approval system as it conversely assumes that hemp seeds are a prohibited food. The situation in Belgium, however, is changing.

Belgian federal authorities amend their guidelines: hemp seeds are authorized

Although at first it looked like the authorities were hesitant to amend their policy, some recent changes have been made to better align the Belgian rules with EU law. In a new guidance document, the FSP Health and the Food Safety Authority have now clarified that hemp seeds are ‘in the clear’. Consequently, “no individual lot-by-lot derogations must be requested for the use of hemp seeds and food products derived therefrom.”

This is already being applied in practice. According to media reports (here and here), the bakery chain, Pain Quotidien, has been able to put bread with hemp seeds (‘Cannabis bread’) on the market in Belgium without having to obtain a prior derogation.

Two words of caution are in order. Firstly, by default, foods that contain parts of the cannabis plant are still prohibited in Belgium. Hemp seeds (and products derived therefrom) are the exception. In other words, for foods based on Cannabis sativa that do not fall within the scope of the EU Food Contaminants Regulation, individual derogations must still be requested. Secondly, so far, only the authorities’ guidelines have been amended. The underlying law currently remains unchanged. As the guidelines are not legally binding, hemp seeds still face some legal uncertainty in Belgium. Based on informal contacts with the federal authorities, we understand that the Royal Decree of 31 August 2021 is under review and that it will be amended to better align it with EU law.

The EU regulator has harmonized the maximum levels for THC in hemp seeds throughout the Union within the food contaminants framework. 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. However, the situation in Belgium  is changing. In a new guidance document, the federal authorities have now clarified that hemp seeds are authorized and batch-per-batch derogations are no longer required. It is worth noting that, so far, only the authorities’ guidelines have been updated. The underlying Royal Decree has yet to be amended and is currently under review.

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

Written by

• Philippe de Jong

  Partner

• Bregt Raus

  Associate