According to CNBC, New York City’s health department has ordered restaurants to stop adding CBD to food and drinks, threatening to thwart the budding trend.
Bars, cafes and restaurants across the city have been increasingly adding CBD, short for cannabidiol, to cocktails, coffee and food. New York City’s health department started cracking down on restaurants in the city in January, saying CBD wasn’t approved as a safe product for consumers.
President Trump signed the 2018 Farm Bill in December, including the provisions, which legalize the domestic cultivation, production, and commercial development of hemp, and hemp products at the federal level.
According to Ronie Schmelz, counsel with Tucker Ellis LLP (California), even with the aforementioned legislation, confusion surrounding hemp remains, and suggests retailers stay informed of regulatory developments.
“Notwithstanding passage of the Agricultural Improvement Act of 2018 (the Farm Bill), a lot of uncertainty remains surrounding the use of hemp, particularly in food and dietary supplements,” she explained. “This is partly because while the Farm Bill, among other things, removes hemp from Schedule I of the Controlled Substances Act, allows licensed farmers to grow the product, and allows for interstate transportation of hemp and hemp-derived products, it does not address the legality of selling these products.”
Schmelz noted that on Dec. 20, 2018, FDA (Food and Drug Administration) Commissioner Gottlieb issued a statement reminding everyone that passage of the Farm Bill does not change the FDA’s regulation over food and supplements under the Federal Food, Drug, and Cosmetics Act (FD&C Act). “In his statement,” Schmelz said, “Gottlieb noted that ‘it is unlawful under the FD&C Act to introduce food containing added CBD or THC) into interstate commerce, or to market CBD or THC products as, or in, dietary supplements, regardless of whether the substances are hemp-derived.’ On Jan. 15, 2019, Senators Oregon Senators Ron Wyden and Jeffery Merkley sent Commissioner Gottlieb a letter asking FDA to update its ‘outdated regulations’ that prohibit food products containing CBD from being sold across state lines. The senators requested a response to their letter within 30 days after the government resumed business after the shutdown. FDA’s guidance on the use of hemp-derived CBD in foods and supplements is likely to inform how states will treat the sale of such products, but it remains to be seen whether states will continue to outlaw or impose stricter regulations on the sale of such products within their states.”
Retailers ought to remain abreast of how this develops, and should sell CBD products at their own risk. “Retailers selling ingestible hemp products will continue to do so at their risk until the regulatory landscape matures,” Schmelz stated. “One may have thought the government shutdown, limited resources at FDA, and agency priorities would portend minimal risk to retailers, but recent governmental activity suggests we have a long way to go before retailers can sell hemp-derived products risk-free in the U.S.”
