Portuguese health authorities block sale of CBD cosmetics in violation of EU law

Portuguese health regulators are under fire for withdrawing CBD-containing cosmetics from the market, a decision that seems to run counter to the European Union (EU) legislation on the free movement of goods.

The decision to’Infarmed, l’national authority Portuguese for drugs and health products, In particular, the ban has raised concerns among industry players and attracted the attention of legal experts, who consider it both illegal and detrimental to business.

Infarmed's position and legal rationale

Infarmed claims that CBD extracted from resins, tinctures or extracts of the cannabis plant falls within the definition of a narcotic under EU regulations. Citing European laws prohibiting narcotics listed in the 1961 United Nations Single Convention on Narcotic Drugs in cosmetic products, the agency has ordered the immediate withdrawal of several CBD-infused cosmetic products from brands such as SVR, Naturasor and Dermacol as reported by CannaReporter.

The regulator justifies its position by pointing out that the’inclusion of CBD in CosIng, the cosmetics ingredients database, does not constitute official authorization for use in consumer products. According to Infarmed, this means that CBD derived from’herbal cannabis extracts remains prohibited in cosmetics in Portugal, a position it has defended since 2022.

Contradiction with European legislation

Legal experts and industry advocates argue that Infarmed's interpretation is in direct contradiction with a 2020 ruling by the European Court of Justice (CJEU) in the KannaVape case. This ruling establishes that CBD is extracted from Cannabis sativa, including flowers, is not a narcotic in the sense of United Nations Convention of 1961 and cannot be banned from trade between EU member states without scientific proof of potential harm.

The CJEU ruling is binding on all EU institutions, and obliges member states to align their national legislation accordingly. By restricting the sale of CBD cosmetics, Infarmed is committed to basic European principles.

Faced with the pressure put on them by Inframed, brands that decide to comply can either reformulate their products, or turn to Synthetic CBD to bypass restrictions.

However, the Portuguese position will please the various French players seeking to position CBD as «toxic» at European level. This would have to prohibit its use in cosmetics and limit its use.