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Restaurants feel the heat over CBD-infused menu items

The federal government has promised to provide some clarity, but restaurants likely run a risk in the meantime if they use the cannabis derivative as an ingredient.
Photograph: Shutterstock

The Food and Drug Administration (FDA) is in the process of clarifying the rules governing use of cannabidiol (CBD) as a food ingredient, but that hasn’t stopped some restaurateurs from betting they’re probably within the law in mixing drinks or cooking with the cannabis derivative. After all, you can find CBD openly for sale in the nearest drug or health food store, right? And didn’t some major 2018 law legalize hemp, a form of cannabis from which CBD is produced?

Chances are high that all but a handful of those operators can be hit with fines or an “embargo,” a move to prevent the products from being sold (in New York City, the embargo consisted of packing CBD-laced baked goods in sealed plastic bags that could not be legally opened).  Although last year’s Farm Bill essentially took a weak form of hemp off the list of “controlled substances,” or materials subject to strict FDA guidelines because of their health risks, Congress specified that products containing CBD would remain subject to strict FDA rules governing their sale.

In short, any restaurant food using CBD as an ingredient is still technically illegal unless the FDA approves the preparation, just as any new heart medicine or diabetes treatment can’t be marketed until it earns a go-ahead from the agency. 

But the FDA itself acknowledges that there are some loopholes. For instance, as a federal agency, its authority over intrastate matters is open to challenge. That’s why states have legalized marijuana use even though that form of cannabis is clearly illegal under federal law.

That shifts oversight of CBD use as a food ingredient to state and local jurisdictions. But, traditionally, enforcers of health and substance regulations at those levels have adopted the policies of the federal government, which is why New York City embargoed the CBD-infused food products of five local restaurants earlier this year.

Even in states that permit the recreational or medical use of marijuana, the form of cannabis that produces a high because it contains THC, the laws are very strict about what forms of weed that can be sold and consumed. In New York state, for instance, residents approved to consume marijuana for medical purposes can only buy it in the form of drops or oil dispensed via e-cigarettes. Full or partial legalization of marijuana does not automatically permit the use of CBD or THC as an ingredient in foods, beverages or other preparations.

“Stockholders are looking to the FDA for clarity on how our authorities apply to such products, what pathways are available to market such products lawfully under these authorities, and how the FDA is carrying out its responsibility to protect public health and safety with respect to such products,” then-FDA Commissioner Scott Gottlieb said in a public statement.

He pledged that the agency would clarify the matter, starting with a public hearing and the formation of a “high-level internal agency working group” to look specifically at how diet supplements and “conventional foods” could be legally marketed.

In the meantime, Gottlieb said, shortly before stepping down as commissioner, the agency intended to send “warning letters” to any merchant or manufacturer who made false claims about the effects of CBD-infused products.

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