Health Europa Quarterly (HEQ) speaks with Mike Barnes of Maple Tree Consultants and Ricardo Geada of Mackrell Solicitors about the need for a legal cannabis and CBD market in the UK.
In April 2021, the UK’s Maple Tree Consultants and Mackrell Solicitors produced a collaborative discussion paper on the UK’s medical cannabis policy landscape, issuing 10 key recommendations for policymakers and calling for the formation of a functional legal cannabis industry within the UK. The paper, titled ‘UK medical cannabis and CBD discussion paper: 10 recommendations for government’, calls for a reduction in red tape and gentler regulation of what has the potential to be a multi-billion-pound industry.
What were the key findings of your report on the UK’s medical cannabis and CBD market? Which aspects of UK legislation are most urgently in need of change?
Mike Barnes: The basic reason we produced this report was that there is an increasing need for a UK medical cannabis and hemp industry, particularly since for the last two years it has been legal to prescribe medical cannabis in the UK and there is now a burgeoning CBD industry. Because of those two key factors, we thought it was time for the government, the media and the public to recognise this need to develop the medical cannabis industry, so we came up with 10 recommendations for the government. Those recommendations are detailed in full in the report, but there are a few that I think are particularly important.
If we had better guidelines for allowing doctors to prescribe medical cannabis, that would be really helpful, because the guidelines produced by the National Institute for Health and Care Excellence (NICE) and other bodies are very restrictive; and although they are not mandatory, they do put a lot of doctors off. The other significant recommendation on the medical side was to permit general practitioners (GPs) to prescribe, which I think would be really key. GPs would be very good prescribers – in general they are more holistic, they know the families, and they know the patients – and there is a lot of interest among the GP community in starting to prescribe cannabis, so allowing GPs to be primary prescribers could be really useful.
The third key suggestion is to make it easier for UK farmers to actually grow high-THC cannabis, as well as hemp – there are several farmers who are already wanting to do that; a number of them have put in an application but that has just stalled at the Home Office level. Persuading the Home Office and the Medicines and Healthcare products Regulatory Agency (MHRA) to speed up and streamline that process would be really important as an initial step in building a proper UK medical cannabis industry, which in turn would generate roughly 97,000 jobs; as well as generating income and guaranteeing a consistent supply of better quality product for the patients.
Ricardo Geada: From our perspective as lawyers, what we have seen from our client base is that the industry has effectively overshot the legal regulations. The regulations and statutes in this country are outdated – the Misuse of Drugs Act is 50 years old – and so they do not really deal with issues such as permitted levels of THC or the chemical differences between hemp and cannabis plants. This really ties in with why we wrote the report: yes, we have issued 10 recommendations, but it is more of an educational piece aimed at improving matters in this area.
For example, one of our recommendations is for an increased legal THC limit. There are currently two significant restrictions in place: firstly, hemp plants can only be cultivated with levels of 0.2% THC or lower. Meanwhile, when it comes to finished products such as CBD oils or extracts, only 1mg of THC per product is permitted. The Misuse of Drugs Act in this country prohibits any controlled substance, so THC is not allowed apart from those minor levels; and there is very much a need for reform on that. That ties in with the need for more education for parliamentarians and lawmakers, particularly in terms of heightening their understanding of the cannabis plant and THC.
Could wider education for clinicians and policymakers improve the regulatory landscape? How could this be implemented?
MB: Education is a vital issue – for the public, particularly for doctors, and also for politicians – about the potential benefits of this industry and the benefits of minor changes to regulations; we’re not talking about major legal changes that would require parliamentary approval. Educating everyone across the spectrum is really important: we are now putting on regular monthly training sessions for doctors; we would like to get politicians around the table and try to educate them about the benefits of this sector, but that is yet to be achieved.
RG: Engagement is crucial; as is that willingness on the part of both sides to achieve what will be beneficial, not only to patients and consumers in this space, but also for the commercial entities which produce these products, both on the medicinal side and across the hemp industry.
Should cannabinoids be regulated as food supplements, novel foods or medicines? Has the Food Standards Agency’s (FSA) approach to Novel Foods regulation been appropriate?
RG: At the moment, CBD is treated as a Novel Food, irrespective of the arguments which have been raised that this should not be the case because cannabinoids have been part of our dietary system for centuries. With regards to Novel Foods regulation, the UK is now out of Europe and the FSA has taken the application process into its own hands as of January 2021. In February 2020, the FSA said that if a manufacturer already has products out on the market, and if they make an application and it is validated by the FSA, the manufacturer will be able to continue to sell those products – and that is unusual in the circumstances, because usually products which are classified as novel can only be sold once they have been granted full authorisation, and that is only the case here for products which were not on the market prior to February of 2020.
In the report, we discuss whether or not the process needs to be more simplified or whether the guidance needs to be adjusted, because fundamentally, CBD is CBD – so once it has been tested once, there is unlikely to be much difference between products aside from certain variances in other cannabinoids or in the levels of THC. The FSA needs to supply better guidance as to what those levels should be: it has received 1,000 Novel Foods applications since January, potentially costing several hundreds of thousands of pounds to many companies which cannot afford it; the process needs to be simplified.
MB: What the government needs to recognise is that CBD is a medicine, and the frustration is that those who are making CBD products are currently prohibited from making medical claims. The trouble with all the publicity around CBD in magazines, television, radio and other media is that people are going into shops, buying CBD over the counter for their medical issues, like anxiety, pain, sleep or appetite, and then they do not know what to take, what format to take it in, how to take it or how much to take; and because the companies producing CBD are not able to make any concrete claims, they are not able to help the consumer. What needs to be done – and this is another of our recommendations – is to change the stipulations of the Medicines Act to allow those companies to make sensible, balanced medical claims. Of course, they should not be able to make any unsubstantiated or ridiculous statements, like saying CBD cures all forms of cancer; but CBD is genuinely a very good and very safe medicine, and the problem we currently have is that people cannot say that.
Allowing companies to make those sensible, balanced claims for over-the-counter CBD products – wellness claims, if you like – is really quite important, because there are hundreds of thousands of people using CBD for medical reasons, but out of ignorance, some of those people are using it in too small a dose to have an effect and then rejecting it unnecessarily; while some may be using it in too high a dose and having unnecessary side effects. We need to be able to say what there is to take, what it is good for and what it is not good for.
What would be the economic benefits of establishing a legal domestic cannabis industry within the UK, particularly in the context of the financial impacts of the COVID-19 pandemic?
MB: Post-COVID-19, and to some extent post-Brexit, establishing a domestic cannabis industry would provide a really important economic stimulus: at a conservative estimate, developing a UK medical cannabis industry will deliver 97,000 jobs, which is more than, for example, the UK fishing industry. It could be a really important sector to stimulate part of the economy, ignoring the wellness or medical benefits entirely; and of course if you have a vibrant new industry, you will raise tax revenue from that through corporation tax and VAT.
In general, not only would a legal cannabis industry in the UK generate income for the country, it would also divert that income away from the black market – because we should not forget that there is a massive black market for cannabis at the moment, which is putting money into the hands of criminals. Why would we want to invest in the criminal fraternity when we could invest in a good quality, standardised, consistent, safe product, make money and generate jobs?
RG: Establishing a legal industry will create revenue, through taxes and otherwise, for the government, but there are also benefits in terms of access for consumers and patients. Medical cannabis would be more freely available; there would be more guidance available for patients, because it would be provided through licensed, regulated businesses and clinics; but also the cost to those consumers and patients would drop dramatically, because the products would be more readily available. Arguably, it would be a win-win situation for everybody.
What would be the benefits for patients and legitimate suppliers? Is there a human rights aspect to relaxing cannabis legislation, both in terms of patient welfare and the more harmful implications of the illicit cannabis industry?
RG: Generally, when we talk about anything that is considered a medicine, it needs to go through the correct approval processes; it needs to be tested and checked. Medical cannabis needs to be made more available, but it should still be accessed through reputable clinics or dispensaries, as is the case in most US states. Maybe a doctor or practitioner will recommend a cannabis-based medicine, but they should then be able to direct the patient to a dispensary where there will be someone who is not only licensed but qualified to recommend a specific strain or proportion of CBD or THC. That is where we need to get to, rather than suggesting that patients have an inherent right to access a specific product.
To return to the original purpose of the report, one of the key benefits of evolving medical cannabis policy would be for the patients themselves: rather than going through the black market or buying something off a street corner and not actually knowing what they are buying or where it actually comes from – there is no track and trace system for those products – we could have legitimate systems in place where everybody is protected.
MB: I cannot think of any sensible intellectual case that can be made for keeping medical cannabis – we are not talking about recreational cannabis here – illegal. We are forcing people into the illegal black market, where they do not know what quality they’re getting, how much to take, the consistency of the product, whether it is contaminated. If we can make a safe, consistent medicine widely available to the people who need it, there cannot be any other intellectual argument for keeping it within the criminal market; I just do not understand why people suggest that it should be.
RG: We are treating patients and consumers as criminals. It’s not the right way. There are two key elements of illicit cannabis consumers: people who use cannabis oils flower to treat specific symptoms, and people who buy cannabis for recreational or adult use; and that is going to happen until cannabis is either decriminalised or legalised in the UK. Looking at other European countries which have already decriminalised cannabis, such as Portugal, they have seen a dramatic drop in criminal activity and massive increase in tax revenues where medicines have been easily accessible by pharmacies or clinics where individuals can go to access certain drugs. The statistics are there to show that criminal activity will drop if cannabis is more accessible legally.
What cannot be lost is that this is all about the patients and consumers. Access to cannabis is something that should not be treated as a taboo subject or as criminal activity.
Neurologist and cannabis expert
Maple Tree Consultants
Head of Cannabis Law Team