Earlier this week, the New York City Department of Health and Mental Hygiene (the “Department”) issued a statement banning the addition of CBD, otherwise known as cannabidiol, to food and beverage items offered for sale across New York City. As CBD-infused products continue to gain widespread popularity, the Department’s enforcement efforts have left restaurant and business owners somewhat perplexed and in search of answers.
In apparent reliance on U.S. Food and Drug Administration (“FDA”) guidelines, the Department has prohibited New York City restaurants from “[adding] anything to food or drink that is not approved as safe to eat”, which the Department goes on to state includes CBD, a non-psychoactive chemical compound produced by the cannabis plant. Despite popular opinion regarding CBD and its curative impact on a wide range of conditions, the FDA maintains CBD as “unsafe for consumption” as a food and/or dietary supplement additive, based on the relative absence of substantiated scientific evidence.
While CBD derived from THC-producing cannabis plants remains classified as a Schedule I controlled substance under the Controlled Substances Act, hemp-derived CBD was de-scheduled as a controlled substance under the Agriculture Improvement Act of 2018, or the 2018 Farm Bill, signed into law on December 20, 2018. However, Congress explicitly preserved the FDA’s authority to regulate products containing cannabis and/or cannabis-derived compounds, regardless of derivation, under the Federal Food, Drug, and Cosmetic Act. As a result, it remains unlawful to introduce CBD-infused products into interstate commerce and to market CBD products as a dietary supplement and/or product offering therapeutic benefits, without requisite FDA approval.