The Current Stance on the Legality of Cannabis Edibles
Cannabis edibles remain illegal under current laws in Scotland and the wider UK. The production and sale of a cannabis containing foodstuff, even those with low or no levels of THC, can lead to a criminal conviction. The Medicines and Healthcare products Regulatory Agency (MHRA), in a statement issued in March 2022, confirmed that "Cannabis as an ingredient in foods can only be used if it has been subject to the appropriate regulatory processes and permissions for use as food. Cannabis that’s grown or cultivated must comply with the Approved Cannabis Varieties regulations".
A cannabis variety retains its THC content unless it is bred out. Therefore, even if the edible contains a strain of cannabis with a low level of THC, breeding out the THC will be necessary to ensure that the cannabis is low risk and that the product is not an invalid cannabis product. If the active ingredient is a synthetic cannabinoid, then products containing those substances fall under the Specialised Food Regulations. However, while there is one legal synthetic cannabinoid based medicine, which contains 2.5mg of dronabinol, there are no approved products with either THC or CBD.
The relevant government department responsible for the regulation and control of hemp is the Home Office. To be legally defined as hemp, the cannabis must contain no more than 0.2% THC and the seeds and fibre must be used. While the Home Office does not currently regulate the seeds or fibre, the MHRA and the Food Standards Agency do regulate and monitor their use. Therefore , a food containing the hemp seed or fibre that contains in excess of 0.2% THC is out with legal tolerances and classes as an invalid cannabis product, which means that its sale would be prohibited.
Any manufacturer that obtains its fibre or seeds from countries within the EU where growth is permitted are presently insulated from the direct regulatory controls of the Home Office. However, it is anticipated that these will be extended to seeds and fibre once specific controls have been established. The Home Office is responsible for the issue of hemp production licences, which allows farmers to produce hemp in England and Wales. Similar powers are devolved to the Scottish Government. This licence system will need to be amended once controls are established to ensure that farmers have access to technique varieties.
The novel food market is still being pulled together at this time and the UK Market Surveillance Authorities are looking at products already on the market. The MHRA is currently monitoring and reaching out to these businesses. After research, they have identified novel foods containing banned compounds and trace cannabinoids. Some investigatory work is ongoing in respect of a dispensation for prohibited products, where they are, and this will be available.
Unlike elsewhere in Europe, cannabis food is not permitted in the UK. There are currently no laws in Scotland or the wider UK governing the manufacture, sale, or consumption of cannabis edibles.
Cannabis Edibles versus Other Forms of Cannabis
Scotland’s law makes no distinction between between different categories of cannabis product, and therefore the prohibition applies equally to cannabis edibles and more traditional forms of cannabis. Cannabis is controlled as a Class B drug under the Misuse of Drugs Act 1971, alongside other materials that contain THC or analogues (synthetic versions) of THC which mean that the range of drugs that can be classified as cannabis product is far wider than the common perception of this drug as a range of varieties of cannabis plant including sativa. This classification as a Class B drug is relevant for various purposes, and in relation to the supply and possession of cannabis products, means that the penalties for these offences are less serious than for Class A drugs and carry maximum sentences of up to five years’ imprisonment if prosecuted on indictment. As cannabis edibles are not considered by law to be a different product to cannabis, the same penalties apply to cannabis edibles as cannabis plant material.
However, there is a substantial difference in practice. Whilst cannabis edibles of one type only came onto the market just a very few years ago, so little data exists regarding the particular dangers associated with their use, it is difficult to draw a full comparison. The edibility of these products certainly distinguishes them from cannabis products found in plant form. Cannabis edibles are designed to be eaten and are infrequently, if ever, smoked. This increases the relative frequency of an adverse food reaction to multiple substances. Cannabis edibles contain a similar chemical categorisation, and in some cases are entirely unravelled in their composition with the only common element being cannabis. The differences in composition also increase the risk to users of not understanding the food package labels, and losing sight of understanding how many units they are consuming, per sitting. For example, some cannabis edibles presently available are in the form of chocolates, which product is designed to be eaten in moderate amounts. In contrast, other cannabis edibles are in the form of highly concentrated doses of oils, able to administer a small dose of cannabis oil per drop, which are intended to be ingested in low doses. This presents further risk to users seeking to get high from cannabis, as even a small number of drops may lead to a very high level of consumption and the resulting adverse effects. There remains a risk without illegal cannabis edibles that users may consume too much, and be required to seek treatment following issues such as severe nausea and hallucination, as with their non-cannabis counterparts, however, the development of a safe range of products remains to be seen.
The Implications of Possessing Edibles
The possession of a controlled substance is illegal in Scotland and anyone who possesses any type of cannabis or cannabis product is committing an offence. Cannabis products include oils and edibles. The Drugs Analogue Act – 1966 now allows for the prosecution of breaches in respect of so-called ‘analogues’, or substances that share similar properties to a controlled drug. The legislation aims to give police and prosecutors the tools to deal with new psychoactive substances (typically so-called "legal highs") when they are first discovered, without waiting for separate control orders to be passed after scientific testing. Possessing Class B drugs, including cannabis edibles, is treated very seriously by the police and courts. Under the Misuse of Drugs Act 1971, possession of cannabis with a view to supplying is a serious crime which can result in a maximum prison sentence of 14 years. While most edibles are low strength, you might still be charged with possession with intent to supply depending on how much you have and the circumstances in which it was seized. Possession of Class B drugs in relatively minor amounts (for personal consumption) will usually result in a non-custodial sentence such as a fine, community service, community payback order or community disposal order. Possession of enough cannabis to suggest you intend to supply it will be considered possession with intent to supply, which can carry a maximum penalty of 14 years in prison. If the court finds you are a serious drug dealer then the mandatory minimum is seven years but could still be extended to life depending on various factors such as the scale of your operation. It is possible to receive a fine for possession of small quantities of cannabis although this is unusual based on available case-law. In practice this can mean that even where a number of small offences of possession are committed, it might be treated as a single offence punishable by a fine. If you decide to purchase cannabis edibles (illicitly) from outwith Scotland, you run the risk of breaching UK importation laws. Section 170 of the Customs and Excise Management Act 1979 makes it a criminal offense to import goods into the UK knowing, or having reasonable cause to suspect, that they were imported unlawfully. Offending this section is ‘strict liability’ which means it is no defence to say there was nothing unlawful about the original importation. If you have reasonable cause to suspect the goods were imported illegally you will be liable to prosecution. This is punishable by a maximum of seven years in prison.
The History of Cannabis Law in Scotland
Scotland has a long, and at times, rich history of cannabis use and production. Compared to some other European countries, Scotland has not been averse to cannabis – according to recent surveys, 40% of Scots sampled had used cannabis in their life. Although a jury conviction of possession over the threshold limit of the amount deemed to be personal use (which is 7.5g) could easily lead to a custodial sentence, it should be noted that juries are known to be very unlikely to convict people for personal possession of cannabis due to societal attitudes towards the drug. Cannabis was first made illegal in Scotland in 1928 by UK legislation, the Dangerous Drugs (Amendment) Act. Section 5 of the Act made it illegal to possess, manufacture, supervise the manufacture and supply of cannabis. In the decades following, Cannabis Control legislation has seen little change. Criminalisation under the Dangerous Drugs (Amendment) Act 1928 Amendment (No. 1) Regulations 1964 was introduced, to make cannabis banned without exception as a precursor chemical (a product that precedes the manufacture of a more relevant finished product). The Misuse of Drugs Act 1971 amended Dangerous Drugs (Amendment) Act 1928 and introduced a system of classification of certain drugs by "Class" , ranging from Class A to Class C – cannabis falling within Class B. Interestingly, the Advisory Council questioned the validity of the classification of cannabis, stating "[it] has given the Scottish Office, for example, the opportunity to issue several recommendations for the ‘reclassification’ of cannabis between 1976 and 2001". Despite the recommendation of the Expert Committee and Advisory Council to reconsider the rationalisation of the classification, the Misuse of Drugs Act 1971 remains in its current form. In 2004, The Classification of Poisons Amendment (England, Wales and Scotland) Regulations 2004 further extended control over cannabis as a poison. Now, cannabis remains a controlled substance, that is even subject to a death-like statutory plan as the Misuse of Drugs Act 1971 states that it is a controlled under Schedule 1, Part 1, MDA. Schedule 1 is a sort of ‘Ghost Schedule’ – it sets out controlled drugs that are subject to the most stringent regulation and are only liable for research or use in hospitals. It cannot be acquired, supplied, produced or be capable of being manufactured (without Home Secretary permission). As such, cannabis is prohibited for any use, except by licensed research facilities, hospitals and industry.
Attitudes and Advocacy for Legalisation of Edibles
In parallel with the push for cannabis reform in Scotland, public opinion and advocacy efforts have continued to grow. In the run-up to the 2021 Scottish Parliament elections, a number of organisations and individuals expressed their support for the legalisation of cannabis for medical and/or recreational purposes. Multiple local and national charities including the Scottish Society for Neurological Sciences (SSNS) and LEAP UK (Law Enforcement Against Prohibition) took to Twitter to express their respective support for a regulated cannabis market in Scotland.
Shortly before the elections, the social justice-focused advocacy group, LEAP UK, announced it was forming a Scottish chapter to press for reform in Scotland after the Scottish Government introduced a bill that would decriminalise cannabis for personal use, but fell short of fully regulating adult use. LEAP UK is composed of current and former members of law enforcement and court judges who have personally witnessed the harms of cannabis prohibition, particularly the ongoing racial disparities in the criminal justice system, and now advocate for cannabis law reform. The head of LEAP UK, Pete Duncan, retired UK Police Inspector, commented that legalising cannabis would "bring safe drug use out of the shadows, supply it from licensed outlets, and tax the resulting product as well as redirect law enforcement efforts towards organised crime groups."
These efforts were described as being "closely aligned" with the Scottish Liberal Democrats, as they and the Scottish National Party (SNP) had each separately proposed the decriminalisation of cannabis. Several opinion polls published in late 2021 and early 2022 also show increasing support for legalising cannabis in the UK in general.
The Drug Science and United Patients Alliance released a survey of 1,007 "adults aged over 18 throughout the UK," for Vote Cannabis: UK Cannabis Voters Survey 2022, which showed that 63% of respondents support legalising cannabis for recreational use and 85% back its legalisation for medical purposes. More importantly, 57% of those surveyed stated that they would vote for a party that pledged to legalise, while an additional 1 in 4 said they would be more likely to vote for a party that promised change in drug policy.
On 4 April 2022, The Social Market Survey (SMS) released research that found that 69% of Scots support legalising cannabis, with two thirds of voters in each political party backing legalisation and only 18% against it. Support for legalising cannabis for medical purposes was even higher, at 83%.
Finally, a number of organisations continue to push for decriminalisation at the electoral level, including the Scottish Greens. On their website, they claim that "the decriminalisation and regulation of cannabis would free up costly police time to focus on antisocial behaviour whilst raising tens of millions of pounds in revenue and savings for the NHS."
Edibles in the UK: What’s Legal in Scotland compared to England & Wales
The laws regarding edibles are currently clearer in England and Wales compared to Scotland. The analysis provided by the Home Office is helpful, as it explains the position on edibles, such as brownies, sweets and cakes containing cannabis, in the context of UK drug laws and enforcement practice. In summary, based on their research on edibles, the Home Office considers, that in England and Wales, each ingredient of an edible product, such as the cannabis and any ingredient containing cannabis, would be treated as a controlled drug for the purposes of the Misuse of Drugs Act 1971 ("MDA", as amended). So, brownies, sweets and cakes using cannabis will be illegal to possess, supply or manufacture in England and Wales (subject to exemptions, such as for hemp seeds) in the same way as if those elements were offered as an ordinary edible product without cannabis. Thus , someone would be committing an offence of possession with intent to supply if they were making cannabis edible products to sell.
A similar analysis of cannabis-related edible products does not, currently, appear to have been carried out by the Government in Scotland. However, the law on the prosecution of cases of possession of cannabis, supply and production of cannabis in Scotland is largely aligned to England and Wales; therefore, we believe that the answer would be similar or the same in Scotland. Supply, manufacture or possession of a controlled drug in Scotland falls under the Misuse of Drugs Act 1971, as amended by the Misuse of Drugs Act 2001, and related secondary legislation. For supply or manufacture with intent, cannabis inflorescences or oils may have a maximum penalty of 14 years in prison, an unlimited fine or both (if tried in the High Court of Justiciary, which is the High Court in Scotland).