Cartel-Like Behaviour: An Open Letter to the FSA
Updated: 15 minutes ago
Dear Food Standards Agency,
That's an interesting agenda paper for your upcoming board meeting...
My concern is that you may have shot yourself in the foot, and I don't even need to go through all related documents to show you how.
Allow me to point to the Summary of stakeholder responses: https://www.gov.uk/government/consultations/consultation-on-applications-for-authorisation-of-3-cbd-food-products-as-novel-foods/public-feedback/summary-of-stakeholder-responses-consultation-on-cbd-novel-food-authorisation#market-distortion-and-systemic-fairness
You say concerns of a “cartel-like environment” are speculative. How can that be true when the Agency had already been warned that its own rules could shut competitors out and hand an advantage to a small number of companies?
Did you ignore those warnings, or did you know about them and dismiss them anyway?
You could answer here, in the comment section below, or in the comment section where this letter has been shared, but I've submitted those questions through the board meeting portal just in case that isn't an option.
That said, I know the answer.
Many people know the answer.
You chose not to respond publicly to a complaint against the agency's handling of CBD novel foods because my audience was considered too small to warrant it. And this was after the complaint, that expressly raised the words “Cartel Market”, was ultimately dismissed.
It was ignored, and that direction is in email, disclosed through FOI, and it comes from your Comms team to your Head of Complaints.
That's the same Head of Complaints who stated to me that "The Civil Service has a habit of ignoring inconvenient truths."
Now, I appreciate that there is a difference between answering to a complaint and answering commentary on a complaint response, but all the same. If everything had been done in good faith, the FSA would have been able to counter any commentary I provided.
But it chose to ignore, and that's quite a big thing when someone has a lot of evidence to show the creation of a regulator-created cartel-like environment.
So regarding inconvenient truths: I could put it to you that you've tried to ignore me.
If so, am I reporting on the truth, that a cartel-like environment is being created, and the agency is trying to surppress that?
Furthermore...
You also hired your ex-Head of Resilience to dismiss my complaint under the guise of the Head of Complaints conducting an investigation.
I do not see how anyone could reasonably expect an independent complaint investigation when the person actually conducting it was the FSA's former Head of Resilience, particularly where the complaint itself concerned the Agency's handling of a controversial regulatory programme.
That is why I believe you, specifically the Head of Complaints, misrepresented him as extra resource, internal to the FSA.
He wasn't. He had been brought back through an employment agency
You also received six complaints around the same period as mine, yet the annual complaints reporting reduced the issues raised to broad categories from which none of these concerns could be identified.
So where did the concerns go?
That's for 2022, and interestingly, between then and 2024, there is no indication of the CEO escalation response to my complaint.
There was no mention of “Cartel Market”, cartel-like concerns, or anything that would allow the public to understand the substance of what had actually been raised.
You've also had similar concerns raised by members of the public, including some who follow the work of The Hemp Hound Agency.
That would be from the time I requested the investigation be reopened on the basis of Emily Miles' connections to CBD policy not being disclosed when she had responsibility over the escalation process for the ignored/dismissed complaint.
And what about Paul Tossell?
Named in the complaint, yet allowed to review the complaint response for factual inaccuracies, after being told that no points of the complaint would be upheld.
How is that independent complaint handling?
That was after Mr Tossell stated in email, to a lot of FSA workers that he was being accused of being corrupt.
The question I feel anyone would naturally have is this:
At what point does a complaints process become corrupt if a person accused within the complaint is allowed to help check and shape the response that clears them?
I am not saying that fact alone proves corruption.
I am saying that if the purpose of an independent complaints process is to determine whether entrusted power has been abused, allowing the person accused of that abuse to participate in validating the answer should trouble anyone.
But the FSA would have known that, which leads to a wider question:
How many parts of the FSA does it take to dismiss one complaint, especially when some of the people involved were named in it, and the Agency still brought back its former Head of Resilience through an employment agency to help finish the job?
And just to give you the full picture on this, the following departments are all named in the investigation files relating to my complaint about the FSA’s handling of CBD novel foods, which, of course, raised concerns about the potential for the regulator’s approach to create a cartel market.
This was not one complaints officer dealing with one complaint.
People and Organisational Change / Complaints
Novel Foods and Radiological Policy Team
Chemical Safety Unit
Food Policy Division
FSA Communications
National Food Crime Unit / NFCU Disclosure
Board Secretariat
FSA Helpline
Chemical Risk Assessment
Risk Assessment Unit
COT Secretariat
ACNFP / Novel Foods scientific assessment function
Information / Knowledge Management – IKM eDiscovery
Chief Executive / Private Office
Operations Directorate
Strategy and Regulatory Compliance
CBD Governance Group / Policy
Deputy Director, Food Policy / Food Policy senior management
ARAC / Audit and Risk Assurance governance route
Remember: the complaint, whilst focusing on many issues, cited RP-07 and RP-350 as problem applications, and their route through CBD novel foods potentially connected them, even before the announcement of their connection with the 10mg ADI, to the creation of a cartel market.
That route included applications being processed despite there being no physical products available to consumers on or before 13 February 2020, a standard the vast majority of companies were required to prove in order to qualify for the CBD novel foods regime.
And that's why this information is important
There is a two-tier industry, and Cannaray and Pureis have ended up in positions that, on the evidence I have seen, I do not believe they should be in.
RP-427... there are separate concerns surrounding that application, but I can tell you that most of the products associated with that application were available to consumers. And, I can tell you that companies would have had to prove that presence through Business to Consumer receipts.
Business to Business receipts were not allowed.
Yet the FSA accepted that Cannaray couldn't have had a consumer presence at the required date because there were import issues.
And they also had evidence to show that Pureis had no named products on the market on 13 February 2020. Not only did they suggest products under different names, despite a no rebranding rule in place, the FSA also held evidence showing that the first relevant product was not deemed safe until around ten months after the date by which it was supposedly already on the market.
And yet despite my best efforts, the FSA has continued to process those applications.
A complaint, an escalation, and then a further escalation to a separate body who is supposed to review the FSA's handling of the complaint and escalation. So why are those applications being pushed towards authorisation while those concerns remain unresolved?
But let's remove ourselves from which novel food applications are being progressed
When looked at as a whole
It is arguable that 15–20% of the "Summary of stakeholder responses" document is devoted to dismissing concerns as outside scope.
I am not saying every one of those decisions is unjustified. Some clearly are.
Cannabis legislation generally? Fair enough.
But drug policy overlaps with CBD policy.
Then there's this...
What is a substantial number in this case?
And concerns that the regulator itself may be creating a cartel-like environment surely become a matter for that regulator the moment it publicly acknowledges that “some respondents” raised concerns of market distortion or a “cartel-like environment”.
So at what point does the amount of space needed to dismiss concerns become evidence that the concerns are not peripheral at all?
But I'm drawn to the words, "Some respondents..."
If these concerns came only from me, I find it difficult to believe you would have written “some respondents”.
In fact, I suspect that nothing would have been written whatsoever.
After all, the FSA does struggle when deciding whether or not The Hemp Hound Agency is an industry stakeholder.
And what makes this considerably more serious is that the same document had already discussed the very mechanisms capable of producing that market distortion, sequencing, restricted market access, first-mover advantage and regulatory data protection.
The FSA chose the plural. Now I'd like to know what sits behind it.
So here's what I've done
The FSA has now put the concern into the public record itself.
What remains hidden is how many people raised it, how specific they were, and what the Agency already knew when it chose to call the issue speculative.
I've submitted an FOI deliberately asking for numbers, dates and the records surrounding the FSA's own published characterisation, rather than requesting every underlying consultation response. Specifically, I've asked for:
How many consultation responses raised concerns about a “cartel”, “cartel-like environment”, market distortion, unfair market advantage, barriers to market entry, or sequencing advantages?
How many separate respondents did those responses represent?
How many respondents specifically used the word “cartel” or the phrase “cartel-like”?
How many respondents linked those concerns specifically to the sequencing of CBD novel-food authorisations?
Please provide the dates on which each of those responses was received. I am not requesting the identities of respondents.
The published summary states that these concerns were raised in a “generalised or speculative form”. Please provide any recorded information showing how, when and by whom that description was decided upon, including any emails, comments, drafting notes or internal discussions concerning the use of the words “generalised” or “speculative”.
Please provide any recorded information showing whether, when drafting that statement, the FSA considered earlier complaints, correspondence or representations already held by the Agency concerning the possibility that its CBD novel-food policy could distort the market, exclude competitors, create unfair commercial advantages or contribute to cartel-like market conditions.
If such earlier material was considered, please provide the number of earlier complaints, correspondence chains or representations identified, together with their dates. I am not requesting copies at this stage.
If no earlier material was considered, please provide any recorded information showing what evidence the FSA relied upon when describing the concerns as “generalised or speculative”.
Please confirm from the consultation records how many of the respondents raising these concerns were members of the public, businesses, trade associations or other organisations, using whatever respondent categories the FSA recorded.
The reason should be obvious.
The FSA has now publicly acknowledged that “some respondents” warned its CBD authorisation system could distort the market or create a “cartel-like environment”, and that respondents specifically warned the 10 mg/day ADI could become a barrier to market entry and restrict product innovation.
Yet the FSA characterised this wider theme as “generalised or speculative”, despite its own published guidance using that same 10 mg/day ADI to shape authorisation conditions and encouraging existing CBD businesses to reformulate their products around it.
I would therefore like to establish exactly how many people raised those concerns, what they actually said, how specific those concerns were, and what information the FSA considered before dismissing the theme in those terms.
Yours faithfully,
Cefyn Jones
The Hemp Hound Agency
P.S This next bit is as much for everyone who responded to the consultation as it is for the FSA.
If the FSA confirms that other people raised concerns comparable to those I have been raising since 2022, I have one very simple question:
Why haven't we found each other?
My fight here has never been about personal glory. It is about what has happened to an industry.
I don't need to wait for the FSA to tell me who responded, and I am not asking them to disclose anyone's identity.
But the words “some respondents” matter.
If you warned the FSA that its CBD policy was distorting the market, excluding businesses, giving a small number of companies an unfair advantage, or creating a “cartel-like environment”, please contact me.
If several of us independently reached the same conclusion, using the same underlying mechanisms, then perhaps it's time those concerns stopped being considered separately.
Email me at cefyn.jones@hemphound.co.uk
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