The Future of Cannabis and Cosmetics in Canada
In the light of several recent regulatory updates to Canada’s cannabis laws, lawyer Jean-Raphaël Champagne examines the potential for cannabis to be legalised for use in cosmetic products in Canada.
One thing that Bill C-51 did not change was the relationship between cannabis substances and cosmetic products in Canada
Cannabis legislation in Canada has come with its fair share of legislative amendments. Bill C-51 not only enacted the Cannabis Act; it also introduced a number of amendments and transitional provisions relating to the Criminal Code and the Controlled Drugs and Substances Act, among others. One thing that Bill C-51 did not change, however, was the relationship between cannabis substances and cosmetic products in Canada.
Strictly speaking, it remains prohibited to use cannabis in cosmetic products at this time. One might therefore wonder: Are there any legal alternatives to add value to a cosmetic product using cannabis or cannabis derivatives? And, more importantly, is there any future prospect for using cannabis in cosmetic products in Canada?
In Canada, the new Cannabis Act (S.C. 2018, c. 16) defines “cannabis” very broadly, i.e. as any part of a cannabis plant, which includes all its components (e.g. phytocannabinoids) and derivatives (e.g. an oil extracted from cannabis). Any substance that is identical to any phytocannabinoid is also considered “cannabis”. Examples include synthetic CBD or THC. Furthermore, while non-viable seeds, mature stalks, fibres and roots are explicitly excluded from the definition, a derivative made from those parts and containing phytocannabinoids would meet the definition of “cannabis”.
Importantly, the List of Ingredients that are Prohibited for Use in Cosmetic Products (commonly known as the Cosmetic Ingredient Hotlist) published by Health Canada currently prohibits the use of “cannabis”, as defined in the Cannabis Act, in any cosmetic product in Canada. Related compounds that are also specifically prohibited include Tetrahydrocannabinol; delta-9-tetrahydrocannabinol; Cannabidiol; Cannabinol; Cannabis Sativa Flower Extract; and Cannabis Sativa Flower/Leaf/Stem Extract.
This effectively means that cannabis, including cannabis oils or concentrates, cannot be used as an ingredient in cosmetic products.
However, cosmetic manufacturers and entrepreneurs will be glad to hear that there is also a subclass of cannabis called “industrial hemp”. In Canada, the Industrial Hemp Regulations define “industrial hemp” as a cannabis plant – or any part of that plant – in which the concentration of THC is 0.3% w/w or less in the flowering heads and leaves.
Because industrial hemp contains virtually no THC (arguably the most psychoactive molecule in cannabis), it is subject to a less stringent regulatory framework. In fact, derivatives from industrial hemp can be exempted from the entire cannabis regulatory framework when they meet certain prescribed conditions.
In particular, derivatives that are made from Cannabis Sativa plant species that are exempted from the application of the Cannabis Act under the Industrial Hemp Regulations can be included in cosmetic products. In order to meet the exemption, the ingredient derived from “industrial hemp” must not contain an isolated or concentrated phytocannabinoid or a synthetic duplicate of that phytocannabinoid, and the THC concentration of the resulting product must be 10 μg/g THC or less.
This is why the ingredient Cannabis Sativa (Hemp) Seed Oil may be incorporated in and displayed on the list of ingredients of a cosmetic product marketed in Canada.
Save for this exception, cosmetics containing “cannabis” are still prohibited, regardless of the legalization that occurred on October 17, 2018. Still, one might wonder if, in light of the recent legalization and, presumably, growing demand by Canadian consumers, the Government may be inclined to reassess the current prohibition and eventually allow the use of cannabis in cosmetics.
The opinion of this author is that this might happen in the future, but it will still take a few steps and Canada is nowhere near accepting the use of the real stuff in its cosmetic products.
By way of illustration, the Government of Canada recently proposed to amend the Cannabis Act to add three new classes of cannabis that could be legally sold by federal licence holders and provincially and territorially authorized distributors and retailers. Those three new classes are “edible cannabis”, “cannabis extracts”, and “cannabis topicals”. Cannabis topicals are currently defined as products that include cannabis as an ingredient and which are intended to be used on external body surfaces (i.e., skin, hair, and nails).
It is important to note that a number of prohibitions on advertising have been proposed in relation with the new classes of cannabis, including with respect to health benefit claims, nutrient content claims and cosmetic benefit claims. As a result, we anticipate that a cannabis topical product may in fact not be represented or advertised as a cosmetic (e.g. moisturizes, heals dry skin, smooths wrinkles, cleans, protects, relieves, etc.). This may sound counterintuitive, because for many of us, topical application refers to creams, oils and balms, which are typically found in the cosmetic section at the local pharmacy outlet. However, the way the regulators picture topical cannabis for the purpose of their proposed amendment is just another delivery mechanism for active cannabis substances.
At this time, there is no clear prospect for using “cannabis” in cosmetics in Canada
In other words, cannabis topicals are really intended as another class of recreational cannabis, in addition to fresh and dried cannabis, cannabis oil, cannabis plants and cannabis seeds; i.e. they are not cosmetic products per se and will not be represented as such.
That said, once they are permitted, cannabis topicals could lead to new business opportunities for those who already have expertise and knowhow in relation to the development and commercialization of products applied topically. Unfortunately, though, at this time, there is no clear prospect for using “cannabis” in cosmetics in Canada. Therefore, a person wanting to increase the value of its cosmetic brand, product or formula by adding cannabis as an ingredient may be better off focusing on hempseed oil and its intrinsic characteristics instead of waiting for cannabis to be fully authorized for use in cosmetic products.