Austrian Supreme Administrative Court: CBD Oils Are Food

Ra 2022/10/0141 (with Ra 2022/10/0142), Decision of 30 May 2025; ECLI:AT:VWGH:2025:RA2022100141.L00

Summary

This case concerned the classification of two CBD oils (5% and 10%) as food — specifically as food supplements — under Art 2 of Regulation (EC) 178/2002. The ban on placing the products on the market imposed by the Regional Administrative Court of Styria (LVwG Steiermark) under § 39(1)(1) of the Austrian Food Safety and Consumer Protection Act (LMSVG) remains in force as long as the cannabinoid extracts used lack a Novel Food authorisation. A mere disclaimer stating "not for consumption" does not change this outcome if the overall presentation of the product leads consumers to expect oral intake.

Background

The LVwG (administrative court) Steiermark prohibited the placing on the market of the products "Hanfama CBD Oil 5%" and "Hanfama CBD Oil 10%" until a valid authorisation under the Novel Food Regulation (EU) 2015/2283 was obtained. The court relied on, among other things, an expert opinion from the Austrian Agency for Health and Food Safety (AGES) as well as the products' overall presentation — including the dropper pipette, dosage scale, and verbal and visual language used.

Decision of the VwGH

Food status under Art 2 Regulation 178/2002: The decisive question is whether, "in reasonable expectation," human consumption of the substance can be anticipated. Based on the established facts, the LVwG was entitled to classify the products as food/food supplements.
"Not for consumption" disclaimer does not prevail: A disclaimer to the contrary on the packaging does not negate food status if the overall picture — taking into account the dosage form, dosage instructions, marketing, and retail environment — clearly points to oral intake.
Role of expert evidence: The AGES expert opinion serves the purpose of establishing facts; the legal classification remains the exclusive task of the court, carried out here by way of an overall assessment.
Procedural outcome: The extraordinary appeals failed to raise a question of fundamental legal importance within the meaning of Art 133(4) of the Federal Constitutional Act (B-VG) and were therefore dismissed pursuant to § 34 VwGG.

Key Takeaways for Practice

Novel Food authorisation as a prerequisite: CBD oils lacking the relevant authorisation may not be placed on the market. Authorities may issue measures under § 39 LMSVG, including sales and advertising bans.
Overall presentation overrides individual disclaimers:
- Dosage form: Pipette bottles, drop scales, and intake recommendations ("x drops daily") are indicative of consumption.
- Labelling & claims: Terms such as "oil", "aroma with…", "premium quality", "100% natural"; graphics depicting mouths or drops; references to consumption-related uses.
- Marketing & context: Placement in food supplement categories, influencer content promoting oral use, customer reviews referring to ingestion.
- Consequence: Even a conspicuous disclaimer stating "not for consumption" is insufficient if all other elements suggest oral use. Businesses should therefore align all elements consistently — product format, label, website, shop categorisation, and social media posts.
Expert evidence ≠ legal characterisation: Experts such as AGES determine the facts; legal classification remains the court's task — carried out here through a permissible holistic assessment.
Compliance recommendation: Until EU authorisation is granted, do not distribute CBD products intended or presented as fit for consumption; revise marketing and listing strategies; establish internal product approval processes.

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About Sabadello Legal

Sabadello Legal advises and represents manufacturers of food products and food supplements, among other areas. Our clients include food law start-ups as well as established SMEs and international corporations. If you have questions about food law, we would be happy to assist. We advise on food law (LMSVG), labelling and compliance, and product controls — from risk analysis and regulatory communication through to defending against official measures and administrative penalties.

Contact

Andreas Sabadello, attorney at law
Sabadello Legal
+43 1 9971037
office@sabadello.legal

Disclaimer

This article is for general information purposes only. It does not constitute individual legal advice.