New York City officials are taking a firm stance in the regulation of cannabidiol (“CBD”) products. Earlier this week, the NYC Department of Health (“DOH”) issued bans against CBD-infused food and drinks as a part of a citywide initiative. The New York DOH visited and inspected eleven local restaurants that serve said products, informing business owners that they would no longer be allowed to sell consumables laced with CBD.1
The action has caught many business owners and consumers in New York by surprise given the popular influence cannabidiol has gained in recent years. DOH officials, however, point to a specific factor regarding the legality of consuming the substance. “Restaurants in New York City are not permitted to add anything to food or drink that is not approved as safe to eat,” a New York DOH representative stated Tuesday. “The Health Department takes seriously its responsibility to protect New Yorkers’ health. Until cannabidiol (CBD) is deemed safe as a food additive, the Department is ordering restaurants not to offer products containing CBD.”2
Back in December, CBD made headlines with the passage of the Agriculture Improvement Act of 2018. Section 12619 of the Farm Bill removed hemp – the cannabis plant in which CBD is derived – from the list of Schedule I substances under the Controlled Substances Act, as well as allowed for the cultivation, sale, transportation, and/or possession of hemp-derived products. Cannabis plants with less than 0.3% THC, hemp and hemp product laws were to be under the shared jurisdiction of both federal and state regulation authorities.3
While hemp and cannabis may be legal at some level, there remains the concern of cannabidiol’s general legality, particularly as an additive. According to the FDA’s website, CBD products are not an approved dietary supplement, as defined by sections 201(ff)(3)(B)(i) and (ii) of the Federal Food, Drug, and Cosmetic Act of 1938.4 Considering several factors, such as public health, the FDA is allowed to initiate enforcement actions to address noncompliance issues. The legal challenge created by CBD-infused products has become one of such instances.
With the increasing popularity of CBD, many experts have predicted that local enforcement authorities would make a regulatory intervention. “The packaging and labeling requirements aren’t there yet in states that don’t have a cannabis regime,” California cannabis attorney Griffen Thorne stated, speaking to the Atlantic regarding CBD’s sudden popularity in edibles. “If you go buy a CBD beverage and it’s not specially packaged—it just looks like another coffee or whatever—someone might take a sip who doesn’t intend to.”5 Circulation of exaggerated claims regarding cannabidiol’s medicinal benefits also pose a significant legal threat to the industry’s future.
Both California and Ohio have issued similar orders for consumables infused with CBD in July and September of last year, respectively. Even as recently as last Friday, state health authorities in Maine issued a comparable ban on the grounds of cannabidiol not being a federally legal food additive.6
Last June, the FDA did approve the first CBD drug for the treatment of epilepsy, however, business owners are not likely to find a clear solution for their infused products. In New York, discovery of CBD food products will result in fines of between $200 and $650, depending on the quantity obtained, starting July 1.7 Somewhat new, the legal framework surrounding the substance is still being developed, and the future of consumable cannabidiol products is uncertain.
- Siemaszko, Corky. “Key Marijuana Chemical Called CBD Can No Longer Be Added to Food, Drinks in NYC.” NBC News. February 6, 2019. Accessed February 07, 2019. https://www.nbcnews.com/news/us-news/key-marijuana-chemical-called-cbd-can-no-longer-be-added-n968566.
- Hicks, Nolan, Rich Calder, and Tamar Lapin. “Health Department Banning CBD from All NYC Restaurants.” New York Post. February 05, 2019. Accessed February 07, 2019. https://nypost.com/2019/02/05/health-department-banning-cbd-from-all-nyc-restaurants/.
- Hudak, John. “The Farm Bill, Hemp Legalization and the Status of CBD: An Explainer.” Brookings.edu. December 13, 2018. Accessed February 07, 2019. https://www.brookings.edu/blog/fixgov/2018/12/14/the-farm-bill-hemp-and-cbd-explainer/.
- Office of the Commissioner. “Public Health Focus – FDA and Marijuana: Questions and Answers.” U S Food and Drug Administration Home Page. Accessed February 07, 2019. https://www.fda.gov/NewsEvents/PublicHealthFocus/ucm421168.htm.
- Mull, Amanda. “The CBD Crackdown Has Begun.” The Atlantic. February 06, 2019. Accessed February 08, 2019. https://www.theatlantic.com/health/archive/2019/02/new-york-city-cbd-crack-down/582193/.
- Overton, Penelope. “State Orders Stores to Remove Edibles with CBD from Their Shelves.” Press Herald. February 04, 2019. Accessed February 07, 2019. https://www.pressherald.com/2019/02/01/state-orders-stores-to-remove-edible-cbd-from-shelves/.
- Hicks, Nolan, Rich Calder, and Tamar Lapin. “Health Department Banning CBD from All NYC Restaurants.”