Cannabis innovation, stuck in the regulatory weeds

5 minute read
15 October 2018

This article originally appeared in Food in Canada and is republished with the permission of the publisher.

It is old news that recreational cannabis is scheduled for legalization in Canada on October 17th, 2018 and that Health Canada has intentions to make edible recreational cannabis products (edibles) legal at a later date (perhaps within a year of the October legalization).  We can only presume that edibles will be subject to strict sale and possession limits, similar to recreational cannabis, which may be appropriate for products containing phytocannabinioids such as tetrahydrocannabidiol (THC), the psychoactive component of the cannabis plant. 

The recent Cannabis Act paints the cannabis plant with a wide brush and restricts the possession and sale of cannabis leaves, branches and stalks, thus restricting their potential for other uses.  These plant components have some THC content and they may find use in the preparation of extracts for recreational and medical use.  Following extraction, licensed producers will be left with biomass that excludes any of the components deemed to be psychoactive and/or prescription drugs in Canada.  This biomass would be a high fibre, nutrient dense product presumably without the risks or the medical effects normally associated with cannabis.  Repurposing this biomass presents an opportunity for the food industry, as well as many others. Unfortunately, the use of cannabis biomass is hindered by the existing and proposed regulatory frameworks associated with cannabis. 

Definitions of cannabis within Canadian law focus on, with few exemptions, the entire cannabis plant rather than only specific constituents that have medicinal or recreational effects.  Therefore, even after the removal of these constituents, the remaining biomass will be controlled in the same strict fashion as cannabis sold for recreational or medicinal purposes. Adding to these restrictions, it is the position of Health Canada's Food Directorate that, if the starting plant material is cannabis, it will always be regulated under the Cannabis Act, regardless of its constituents and removal thereof. If addressed from a regulatory perspective, there is the potential to create a significant valued added product, which could directly benefit food producers.

Currently, certain derivatives of cannabis seeds are permitted in food products in Canada. For example, the Industrial Hemp Regulations which allows for, among other things, the cultivation, propagation, and harvest of low THC industrial hemp by licensees, permits generally the retail sale and possession of a derivative of seed, viable grain or non-viable cannabis seed, or a product made from that derivative, as long as the derivative or product does not contain more than 10 µg/g THC.  Thus, products such as hemp seed oil and hemp seed protein are legally permissible as food and food ingredients in Canada. Other cannabis parts such as leaves, stems and flowering heads from cannabis, even industrial hemp, remain controlled substances and therefore restricted as food ingredients.

As of October 17th, the Cannabis Act, including new Cannabis Regulations and Industrial Hemp Regulations will come into effect.  Under the new regime, certain products made from hemp grain will continue to be permitted for use in foods; however, at least in the short term, the flowering heads and leaves of the cannabis plant will continue to be subject to strict controls, even if the phytocannabinoids have been removed. The Cannabis Act will restrict the sale of these cannabis parts to authorized persons, and only allow for the licensed/controlled sale of dried and fresh cannabis, cannabis oil, cannabis plants and cannabis plant seeds. Thus, foods containing cannabis and cannabis derivatives, with few exceptions, will remain illegal for sale in Canada even where they do not contain psychoactive components.

With the potential of processed cannabis biomass to be used as a value added product, combined with the increasing focus on sustainability and environmentally conscious practices, there is a strong argument to reconsider the restrictions placed on the use of this biomass.  If cannabis derived materials can be demonstrated free of THC and other restricted compounds, it makes good business and environmental sense to permit their use in other industries and future revisions to the Cannabis Act and the Industrial Hemp Regulations can help make this a possibility.

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