No CBD in NYC Food and Drink

Marijuana oil cbd bottle isolated on white background
By Christopher Coble, Esq. on July 02, 2019 3:00 PM

The Drug Enforcement Agency recently moved cannabidiol products with less than 0.1 percent THC from the Schedule 1 list of illegal drugs to the Schedule 5 list of legal medications. But that doesn't mean that all CBD is legal all the time. In particular, bars and restaurants seeking to serve CBD-infused products have faced increased scrutiny from the Food and Drug Administration.

Cities and states are stepping up as well. New York City's health department, for example, announced plans to start issuing violations -- and fines -- to restaurants selling CBD-laced food and drink products, beginning in October.

Unlawful Additions

"The U.S. Food and Drug Administration has advised that it is unlawful to add cannabidiol (CBD) to food or drink," a NYC health department spokesperson said to CNBC. "We are currently informing businesses in New York City that may sell food and drink about this regulation, and have implemented an educational period to help them achieve compliance." The FDA prohibits the addition of active ingredients that are drug products in foods and drinks, and CBD is the main ingredient in an FDA-approved drug Epidiolex, which treats severe childhood epilepsy.

Not only are NYC-based restaurants banned from serving CBD-infused products in the future, but as of July 1, the health department now requires businesses to return such products to the supplier or throw them away.

Laws, Rules, and Guidance

In cases like drug prohibition, federal law trumps, so states and cities ostensibly need to follow federal statutes. However, federal enforcement agencies have given states some leeway on marijuana legalization, and as Canna Law Blog notes, the FDA appears to be choosing the "guidance" route over binding rulemaking.

The FDA has taken a "not legal" position on hemp-CBD in consumables through its oft-cited FAQ and elsewhere. This FDA position is generally understood as "informal guidance" or a "statement of policy", or sometimes a "nonlegislative rule" or an "interpretive rule", which by any name does not have the force of law. FDA commonly issues informal guidance as its primary method of policy-making, which means that the agency does not undertake the Administrative Procedure Act (APA) process of "notice and comment" rulemaking in many cases. This has been FDA custom for a long time.

Navigating overlapping state and federal weed laws and local agency guidance can be a challenge, especially in an industry as highly regulated as the marijuana business. For help with your small cannabiz, talk to a local commercial attorney.

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