Health department violations are coming for restaurants selling CBD-infused food and drink — but not until this fall. According to an email that the Department of Health sent to restaurateurs, the agency will start docking points starting October 1st, potentially subjecting businesses to fines and lowering points that would count toward letter grades.
The DOH email, sent this week, now also says that inspectors will not be embargoing cannabidiol (or CBD)-laced edibles until July 1st. If found, CBD food and drink will either be returned to the supplier or tossed.
In a statement, the health department said it started looking for CBD edibles after a federal rule from the Food and Drug Administration (FDA) in December 2018 that says “it is unlawful to add CBD to food or drink.” But the DOH has added the additional time as “an educational period” to help businesses comply voluntarily. It also pointed to similar bans on CBD-infused foods in cities like Los Angeles, where cannabis is even legal.
The new information follows a confusing few weeks for restaurateurs.
CBD is a legal, non-psychoactive chemical compound that comes from the hemp plant, meaning it cannot get people high. It’s a relative of THC (tetrahydrocannabinol), the illegal compound that does, and with increasing cultural acceptance and legalization of marijuana, CBD-infused edibles like lattes, brownies, and cocktails have become popular as well for purported (though debated) therapeutic impact.
Many restaurants, bars, and coffee shops in New York have been selling CBD edibles for months now, and in December, a federal law passed that made hemp products easier to sell.
But the NYC Hospitality Alliance, an advocacy group for restaurants, said it repeatedly requested guidance from the DOH and did not hear anything, only learning about developments in the press. A more public industry discussion started only after Fat Cat Kitchen’s C.J. Holm publicized that she was surprised when an inspector embargoed her CBD cookies. Shortly after, the DOH confirmed that it was indeed enforcing the rule citywide and embargoed products at five restaurants total, and $200 fines were reportedly starting on July 1.
The new development points to the health department taking a pause.
On Thursday night, Holm received a phone call from the DOH, informing her that her products were no longer under embargo, she tells Eater. An inspector had previously put her CBD pastries in a plastic ziplock bag with a paper saying “embargoed” and “unlawful to move or disturb.” She can’t sell the cookies, she says, but it’s now legal for her to remove them from the bag.
There’s been political pressure for more clarity. Earlier this week, City Council speaker Corey Johnson blasted the health department for the regulation, adding that he’s considering a law that would make CBD-infused foods legal. “I think this was an overreaction,” he told the Post.
The Department of Health email points to the FDA rule. It goes on to say that the delayed enforcement will give the department time for “educating” food-service businesses.
But Holm says she thinks the delay is so that the health department can educate its staff.
“They jumped the gun,” Holm says of the initial embargo on her product. “They did this before they were ready.”
See the full email below:
Dear Food Service Establishment Operator:
In December 2018, the Food and Drug Administration (FDA) issued a statement clarifying its position on cannabis-derived products. The FDA stated that it is unlawful to add CBD to food or drink. As a result, the Health Code also prohibits adding CBD to food or drink.
The Health Department is currently educating food service establishments that CBD is prohibited from being added to food and drink, and to stop offering these products. Beginning July 1, 2019, if operators have not voluntarily come into compliance, the Health Department will embargo food and drink products that contain CBD the products will have to be returned to the supplier or discarded. Starting October 1, 2019, the Health Department will begin issuing violations to food service establishments for offering food or drink containing CBD. Violations may be subject to fines as well as violation points that count toward the establishments letter grade.
For more information on CBD in food or drink, please visit the FDA website: https://www.fda.gov/NewsEvents/PublicHealthFocus/ucm421168.htm
We will update you on our enforcement of this product if the FDA updates its guidance.
If you have any questions, please email infobfscs@health.nyc.gov or call 646-632-6001.
This story has been updated to add a statement from the health department.