Recent crackdowns muddy the waters around CBD in food and beverages

CBD is a rising star in the food and beverage world, but recent crackdowns at state and local levels have made the already hazy regulation of the product even more confusing.

Food and beverages infused with CBD emerged as the top culinary trend of 2019, according to chefs surveyed by the National Restaurant Association. Bars and restaurants have been embracing it as an addition to drinks, desserts and other menu items. The reception by consumers has been positive, and sales of CBD products can be lucrative.

“My CBD stuff is absolutely the No. 1-selling revenue source in the store,” C.J. Holm, owner of New York City’s Fat Cat Kitchen, told the New York Times. The paper interviewed Holm last month after city health inspectors told the restaurant to stop selling CBD-infused products. Similar crackdowns on CBD products were also reports in Maine and Ohio.

The New York City Department of Health has since lifted the ban, saying it plans to reinstate it this summer and begin issuing official violations and fines in October. However, it’s not unlikely that that plan will change as laws around CBD continue to evolve.

Short for cannabidiol, CBD is a compound found in cannabis that has relaxing properties. While it is said to dull pain and soothe anxiety, it lacks the psychoactive properties of marijuana. It is generally considered safe, and restrictions around the hemp-derived substance have been loosening in the US over the past few years.

The 2014 Farm Bill ushered in the first major victory for US hemp farmers, allowing state agriculture departments to grow hemp under a pilot program, as long as it wasn’t prohibited by state law. Last year’s update to the bill went further, legalizing industrial production of hemp and removing it from the list of controlled, or “scheduled” substances.

While these new rules opened up opportunities for CBD, they didn’t spell out clear regulations for how and where CBD can be sold. To the contrary, the looser restrictions have led to a confusing patchwork of state and local laws that have hemp farmers, CBD manufacturers and food and beverage purveyors calling for more guidance from the Food and Drug Administration.

“The FDA has not classified it in any terms...whether its a drug, a dietary supplement or a food. That’s because when you deschedule something, it doesn’t magically get a new classification,” said Dylan Summers, director of government affairs for CBD company Lazarus Naturals.

Responding to requests for clearer rules, the FDA will hold the first public hearings on CBD next month, Commissioner Scott Gottlieb announced last week. The hearings will be the first step towards the agency issuing an official rule about companies adding CBD to food and beverages.

In the meantime, restaurants and bars should keep apprised of the laws in the cities and states where they operate.

“Operators are urged to follow all laws, including applicable federal, state and local laws that apply when selling or using those items at their restaurants,” National Restaurant Association officials said in a statement about CBD products earlier this year.

Summers encouraged restaurants to continue using CBD, saying that the more prevalent it is in the foodservice space, the stronger a case can be made for the idea that “hemp is food.” An important caveat, though, is to only source CBD from companies they can trust, to avoid product with unknown additives or contaminants. Summers explained that Lazarus subjects its products to third-party testing, which is standard for any reputable CBD brand.

“Everything we put out there has independent lab reports verifying what’s on the label is actually in the bottle,” said Rick Weissman, CEO of CBD producer High Falls Extracts. “I imagine part of the problem comes from the fact that restaurants are getting CBD from wherever.”

Weissman echoed Summers’ advice to operators to buy only certified CBD products, suggesting that they retain the certificates of analysis to back up claims about how many milligrams of CBD are in a given product. “If you’re a restaurant and you’re doing this, you want to be very precise,” he said.

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