Are Hemp Gummies and Edibles Legal In Australia? - Criminal Defence Lawyers Australia

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The legalisation of cannabis, hash, hemp and related products has now occurred in many jurisdictions in the United States giving rise to a whole array of edible products, including hash gummies, cookies, brownies and more! Australia is not quite there yet.

But what is the legal status of cannabis and hash derived gummies and edibles in Australia? The following outlines the law regarding cannabis derived edibles in Australia, noting the import distinction between CBD dominant and THC dominant products, and the potential for access under therapeutic goods schemes.

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Table Of Contents

CBD Gummies vs THC Dominant Edible Products
Are Edibles and Hemp Gummies illegal? | CBD Gummies and Edibles in Australia
Can You Take CBD Gummies to Australia?
Legal Status of THC Gummies and Edibles
Main Take Away: Get A Prescription!
Are CBD Gummies Legal in Melbourne and Across Victoria?
CBD and Hemp Gummies Adelaide, SA

CBD Gummies vs THC Dominant Edible Products

Cannabis is a plant from the Cannabaceae family, known for its psychoactive and medicinal properties. The cannabis plant is composed of three primary species: Cannabis sativa, Cannabis indica, and Cannabis ruderalis. The term ‘hash’ refers to a concentrated form of cannabis made from compressing the resin glands of the plant.

There are two important compounds found within the cannabis plant: THC and CBD. THC, or delta-9-tetrahydrocannabinol, is the main psychoactive compound in cannabis responsible for the “high” sensation. CBD, or cannabidiol, in contrast, is a compound within cannabis often sort after for its health benefits, but doesn’t produce the signature “high” sought after in recreational cannabis use.

In legalised jurisdictions like the United States, cannabis-derived products, including edibles, can contain effective levels of THC or CBD or both compounds depending on the preference of consumer. In Australia however, whether an edible product in THC or CBD dominant is an important distinction in terms of legality and potential criminal penalties.

What are Hemp Gummies Used For?

Hemp or CBD gummies are often used for purposes of aiding with anxiety and pain. It promotes calmness without the high generated from THC. They can also be used for recreational purposes for the ‘high’ effect.

Are Edibles and Hemp Gummies illegal? | CBD Gummies and Edibles in Australia

Medical cannabis products such as edibles or hemp gummies containing THC dominant products producing the “high” of cannabis is illegal in Australia without a doctor’s prescription for medical purposes.

Are hemp/CBD gummies legal? As CBD dominant cannabis and hash derived products do not produce the signature “high” of cannabis, they are treated more leniently under Australian law than THC dominant products.

Since 2021, the Therapeutic Goods Administration (TGA) in Australia has classified low-dose CBD products as a Schedule 3 (pharmacist-only) medicines, meaning products can be legally bought over the counter at pharmacies. A CBD product, including an edible, will be “low-dose” if it contains less that 150 milligrams of CBD per dosage. Products must also contain less than 1% of THC.

Higher dose CBD products and those containing up to 2% of THC per dosage, are classified as Schedule 4 (prescription-only) products and are only available with a prescription by a doctor.

Whilst the above changes allow for legal supply of CBD dominant edibles in Australia, the reality is a bit more complex. There are no TGA approved therapeutic goods containing CBD in Australia. This means that although theoretically a person could access CBD dominant products at a pharmacy, no pharmacist currently stocks a CBD dominant product, including gummies and edibles.

Can You Take CBD Gummies to Australia?

The only current way for a person to access a CBD dominant edible in Australia legally, is to import a product utilising the therapeutic goods special access scheme. The special access scheme allows patients in Australia to access non TGA approved products by importing them from overseas. To gain access to CBD, a health practitioner must put in a special request on behalf of a patient to access the product and be granted approval under the scheme.

Importing CBD dominant products, including edibles, into Australia without approval under the special access scheme could constitute an offence under section 233 of the Customs Act 1901 (Cth). This is because therapeutic goods which have not been approved for import constitute a ‘prohibited good’ under the Act. This offence carries a maximum penalty of maximum penalty of 5 years imprisonment, or a fine of $275,000 or both.

Legal Status of THC Gummies and Edibles

Cannabis and hash derived products which contain more than 2% THC per dosage are classified by the TGA as a Schedule 8 (Controlled Drugs). Importing, supplying and possessing THC dominant products, including edibles, will constitute a serious criminal offence in all States and Territories unless the product has been accessed as part of a medicinal cannabis scheme.

Currently THC dominant products prepared for medicinal purposes in Australia, can only be accessed through a prescription by an ‘authorised prescriber’. The prescription of medicinal cannabis products to patients is strictly regulated throughout Australia and is only approved for a narrow list of health conditions.

If a person possesses a THC dominant product, including THC gummies and edibles, without a valid prescription they will be committing a serious criminal offence in each State and Territory in Australia.

Hemp and CBD Gummies and Edibles in Sydney and NSW Penalties

For example, the NSW Drug Misuse and Trafficking Act 1985 (NSW) classifies THC specifically, and not just cannabis leaf and resin, within its listing of ‘prohibited drugs’. This means a person can be found guilty of possession of a prohibited drug under section 10 of the Act, if a THC dominant product is within their possession, custody or control. This offence carries a maximum penalty of two years imprisonment and/or a fine of $2,200.

Also in NSW, if a person is in possession of THC dominant products, including gummies and edibles, and the total THC content of the products is over 3 grams of THC (a ‘trafficable quantity’) there is a prima facie case for the offence of supply under section 25 of the Act. The maximum penalties which apply to supply offences depend on the quantity of THC in a person’s possession. These include:

For less than a small quantity (1 grams of THC), a $5,500 fine and/or 2 years imprisonment if the matter is heard in the Local Court or a $220,000 fine and/or 15 years imprisonment if the matter is heard in the District Court.
For more than a small quantity, but less than an indictable quantity (5 grams of THC), a $11,000 fine and/or 2 years imprisonment if the matter is heard in the Local Court or a $220,000 fine and/or 15 years imprisonment if the matter is heard in the District Court.
For more than an indictable quantity, but less than a commercial quantity (500 grams of THC), a $11,000 fine and/or 2 years imprisonment if the matter is heard in the Local Court or a $220,000 fine and/or 15 years imprisonment if the matter is heard in the District Court.
For more than a commercial quantity, but less than a large commercial quantity (2 kilograms of THC), a $385,000 fine and/or 20 years imprisonment.
For more than a large commercial quantity a $550,000 fine and/or life imprisonment.

Even in the ACT, which has decriminalised the personal possession of small quantities of some illicit drugs, including cannabis leaf, as well as allowed homegrown cultivation of cannabis plants, THC dominant products such as gummies and edibles, remain subject to serious criminal penalties.

THC dominant products are also regulated under federal law, as they are considered “border-controlled drugs” under the Criminal Code Act 1995 (Cth) and can give rise to serious criminal penalties if imported without authorisation.

Import offences depend on the quantity of THC imported, which could constitute a general, marketable or commercial quantity of THC. Under the Code, a marketable quantity of THC is 2 grams and a commercial quantity is 5 kilograms.

The maximum penalties for importation offences are:

10 years imprisonment for importing less than a marketable quantity of THC under section 307.3 of the Code
25 years imprisonment for importing more than a marketable quantity of THC but less than a commercial quantity under section 307.2 of the Code
Life imprisonment for importing a commercial quantity of THC or more under section 307.1 of the Code.

Main Take Away: Get A Prescription!

In summary, if you are interested in consuming a THC or CBD dominant gummy or edible in Australia, your only legal way to do so is either via a special access scheme (for some CBD dominant products) or with a valid prescription by an authorised prescriber.

Trying to consume, possess, sell or import either THC or CBD gummies and edibles without medical approval runs the risk of some serious criminal consequences.

For catered legal advice, call our office for a confidential consultation with one of our drug lawyers Sydney team.

Are CBD Gummies Legal in Melbourne and Across Victoria?

In Victoria, possessing and using CBD gummies is legal if it has been lawfully prescribed by a medical practitioner for medical purpose. Illegally possessing cannabis in Victoria carries a maximum penalty of 5 penalty units if it was not more than a small quantity, according to section 73 Drugs, Poisons and Controlled Substance Act 1981 (Vic). 1 penalty unit is $161.19 and changes each year in Victoria.

Possessing cannabis for trafficking purposes, namely, to supply to others illegally carries up to 5 years imprisonment and/or 400 penalty units fine.

CBD and Hemp Gummies Adelaide, SA

Illegally possessing cannabis in Adelaide or anywhere in South Australia carries up to 2 years imprisonment and/or $2000 fine. This also includes a conviction.

Possessing up to 100grams of cannabis, or 20 grams of cannabis resin, or smoking cannabis in private, or cultivating not more than 1 cannabis plant, no prosecution proceeds. Instead, the offender will receive a cannabis expiation notice by police rather than a court summons to attend court. Upon paying the ‘on the spot’ fine, the offender avoids going to court where he or she can face a criminal conviction and heavier penalties. This is governed by the Controlled Substances Act 1984 (SA).

The fines under expiation are as follows:

$250 for less than 25 grams of cannabis
$400 for between 25 and 100 grams of cannabis
$250 for less than 5 grams of resin
$400 for between 5 and 20 grams of resin
$250 for smoking or consumption in private
$250 for pipes or other equipment (provided it is not for commercial purposes
$130 for pipes or other equipment (if there are other offences)
$400 for non-commercial cultivation (1 plant only, but not hydroponically cultivated)

By Jarryd Bartle and Jimmy Singh.

Published on 07/10/2024