Business Insider Edition

Lawyers warn buyers of (just-legalised) CBD products could be breaking the law – and one big retailer just yanked CBD from its shelves

Phillip de Wet , Business Insider SA
 May 28, 2019, 03:10 PM
CBD illegal

  • As of last week, health-supporting preparations containing cannabidiol (CBD) are fully legal in South Africa – within limits.
  • Some products sold by local retailers are wildly exceeding those limits.
  • And that, lawyers say, means buyers are engaging in illegal prescription drug deals, with all the usual theoretical criminal consequences.
  • One retailer pulled its CBD products this week in response to questions from Business Insider, and others are expected to follow.
  • For more stories go to the Business Insider South Africa homepage.

As of last week, and for the next year at least, it is legal to buy and sell health-supporting products containing cannabidiol (CBD) in South Africa – within specific limits.

But a survey of online retailers by Business Insider South Africa showed that local online retailers (including until Tuesday morning one big and established name) are wildly flouting those rules and selling preparations far stronger than is legally allowed.

Doing so appears to make those retailers guilty of selling Schedule 4 drugs without a prescription, a criminal act.

But the sellers aren't the only ones breaking the law in such a case, lawyers warn. Even if they are ignorant of the fact, buyers too are breaking the law, and are effectively creating a record of their law-breaking, complete with a delivery address and a verified credit card transaction.

See also: Dagga ingredient CBD just became fully legal for anyone to sell in South Africa – but only for the next year

It is not clear if buyers would ever face prosecution, but that doesn't change the legal advice in such a case.

"I would be cautious," warned Helen Michael, a director at Werksmans healthcare and life sciences practice.

"It’s a risk that I’d advise not taking," said Paul-Michael Keichel, a partner at Schindlers who has long pursued re-legalisation of cannabis.

Some retailers too are not taking any chances either. On Tuesday, after questions from Business Insider South Africa, health retailer Faithful to Nature yanked from its virtual shelves CBD products that it had been promoting to its customers on the weekend.

"We want to be sure we do this right," the retailer's CEO Katrien Grobler told Business Insider, confirming it had removed between 25 and 50 products from sale immediately – due to rules that had been intended to make CBD more easily available.

Breaching the limits: when CBD isn't legal after all.

Last week updates to regulation changed CBD, a non-psychoactive ingredient of dagga, from a Schedule 7 drug (a group that includes heroin) to a Schedule 4 drug, where it now resides alongside antibiotics and anti-viral medicines.

That makes CBD available on prescription, exactly like drugs that are dangerous only if misused, and which are not habit-forming.

A separate notice simultaneously excluded CBD from scheduling altogether for a year, making it available over the shelf from anyone who cares to sell it, within limits. 

To qualify for the exemption, preparations must either contain a maximum daily dose of 20 milligrams of CBD, or if made from raw cannabis products must contain only a tiny fraction of CBD (0.0075%) and a maximum of 0.001% tetrahydrocannabinol (THC), the main psychoactive in marijuana.

Until Tuesday, Faithful to Nature was among retailers offering preparations far in excess of those limits. The "very strong" version of imported oil Cibdol, for instance, promises 10mg of CBD per drop. At a recommended three drops per use, three times per day, that is 4.5 times more than the exemption limit – making it a Schedule 4 drug in terms of the new rules.

The same is true for various other imported preparations containing CBD, many of which market themselves based on their strength or the high concentration of CBD they contain.

Other products are marketed as treatments for specific conditions, which is also not allowed in terms of the new rules.

Faithful to Nature had previously sold that Cibdol preparation in terms of what it considered a legal grey area, Grobler said.  Paradoxically, the new regulations intended to make access to CBD easier meant it had to be removed from sale, at least until packaging and dosage guidance could be updated.

The same preparation was on Tuesday still available from various other online retailers

Illegal to sell – and illegal to buy

Generally speaking a consumer who buys a Schedule 4 drug improperly is still breaking the law, even if ignorant of that law, warned Werksmans' Michael, and as a defence "ignorance of the law only takes you so far".

Her advice is to assess products and determine for yourself if they are legal to buy.

Buyers of CBD products that do not fall within the legal limits (and who do not have special dispensation to import such preparations for their own use) could be in contravention of two different laws, said Schindlers' Keichel, covering drugs and medicines respectively. 

Because it is not a good idea to speak to the priorities of law enforcement, he said, it is best not to bet on the authorities choosing not to pursue buyers.

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