Portuguese health authorities blocking CBD cosmetics trade in violation of EU law

Portuguese regulators are facing criticism over their decision to withdraw several cosmetic products containing cannabidiol (CBD) from the market, a move that contradicts European Union law regarding the free movement of goods.

Infarmed, Portugal’s National Authority for Medicines and Health Products, argues that CBD extracted from resins, tinctures, or extracts of the cannabis plant constitutes a narcotic under EU regulations. However, this interpretation directly conflicts with a 2020 ruling by the European Court of Justice (ECJ), which determined that CBD is not a narcotic and should not be restricted in trade among EU member states.

Infarmed has ordered the immediate withdrawal of multiple CBD-infused cosmetic products from brands such as SVR, Naturasor, and Dermacol. The agency cites European regulations which prohibits narcotic drugs listed under the 1961 United Nations Single Convention on Narcotic Drugs in cosmetic products. Infarmed contends that CBD derived from cannabis extracts falls under this restriction, making its inclusion in cosmetics unlawful in Portugal.

Flawed thinking

The move follows a pattern of sporadic enforcement by Infarmed, which has previously issued similar notices for CBD-containing products. The regulator appears to base its stance on the argument that the inclusion of an ingredient in the Cosmetic Ingredients Database (CosIng) does not equate to formal approval or authorization for its use. As such, Infarmed insists that CBD obtained from plant-derived resins or tinctures remains banned in cosmetics.

Infarmed’s approach clashes with EU law, particularly the ECJ’s landmark 2020 ruling in the KannaVape case. The court ruled that CBD extracted from the cannabis sativa plant, including from its flowers, does not qualify as a narcotic under the 1961 UN Convention. Moreover, the ruling established that EU member states cannot prohibit the sale of CBD products legally produced in another member state without providing scientific evidence of potential harm.

Prohibited barrier

The ECJ’s decision binds all EU institutions and requires member states to align their national regulations with this interpretation. As a result, Portugal’s restrictions on CBD cosmetics appear to violate the fundamental EU principle of free movement of goods. By blocking the trade of CBD products, Infarmed is effectively imposing a non-tariff barrier that EU law prohibits.

The Portuguese cosmetics market has seen significant growth in demand for CBD-infused products, mirroring trends across Europe. Consumers increasingly seek CBD for its perceived skincare benefits, and numerous brands have entered the space. However, Infarmed’s crackdown disrupts the sector, forcing companies to reformulate products—potentially with synthetic CBD—to circumvent regulatory challenges.

Moreover, the lack of clear guidance on CBD’s legal status in Portugal creates uncertainty for businesses and investors. Infarmed’s interpretation sets a precedent that could deter companies from entering the Portuguese market, putting the country at odds with broader European trends, where regulatory frameworks are becoming more CBD-friendly.

With reporting from Cannareporter.eu