Breaking down the legality of the much-talked about trend.
There’s no denying it. The restaurant industry is buzzing about CBD. In fact, when the National Restaurant Association released the findings of its annual What’s Hot 2019 Culinary Forecast, CBD—and cannabis-infused food and beverages—were at the top of its list of trends for the year.
But questions remain around the legality of CBD and its use in food and drinks. This lack of regulatory clarity has resulted in sudden shifts in local policies and enforcement that have left restaurateurs scratching their heads.
Spotlight on CBD oil
CBD stands for cannabidiol, and it’s one member of a group of compounds called cannabinoids. These are natural substances that come from cannabis plants, and they are able to interact with the body in a variety of ways.
Growing interest in the medical applications of cannabis—along with changing regulations and increased public acceptance—have set the stage for a surge of interest in CBD as a drug, a supplement, and an ingredient.
And because CBD is non-intoxicating, it promises to deliver natural relief for a variety of conditions without the mind-altering effects of high-THC cannabis.
Marijuana and hemp: legal differences
For thousands of years, humans have used and cultivated cannabis for a variety of different purposes.
The varieties known as “hemp” produced tall plants with fibrous stalks that could be used to make products like rope, paper, and fabric. Its seeds could also be eaten, or pressed to produce hemp seed oil.
Meanwhile, growers bred other cannabis varieties to be more suitable for medicinal, recreational, and therapeutic purposes, which eventually came to be known as “marihuana” or “marijuana” under US law.
These varieties had shorter stalks and more leaves. Most importantly, these varieties boasted resinous flowers that were rich in cannabinoids like THC and CBD.
While the definitions of the past were based on the plant’s intended use, today’s legal definitions are based on the chemistry of the plant and its intoxicating potential.
Current federal law simply defines “hemp” as any cannabis sativa plant, extract, or derivative that contains less than 0.3 percent THC by weight.
This means that a short, leafy cannabis plant with cannabinoid-rich flowers may now be categorized as hemp, as long as its THC content is below that 0.3% threshold. That’s true even if the plant doesn’t have the tall, fibrous stem that would make it suitable for producing rope or paper.
What is the current legal status of CBD?
In December 2018, President Trump signed into law the 2018 Agriculture Improvement Act, which is commonly known as the Farm Bill. This law changed the regulatory status of hemp and CBD in a few important ways.
First, it changed the federal government’s definition of the word “hemp” to include hemp-derived products and cannabinoids like CBD.
The law also amended the Controlled Substances Act of 1970 to state that the new definition of hemp is not “marihuana.” This overturned the DEA’s previous stance that hemp-derived cannabinoids like CBD fell under its regulatory purview as Schedule 1 substances.
Finally, the Farm Bill shifted the authority to make rules about hemp-derived crops and products to the USDA, the FDA, and the states.
The FDA’s position on CBD
Since the passage of the Farm Bill, CBD manufacturers and brands have been waiting eagerly for the FDA to issue new guidance about CBD oil. But the FDA doesn’t regulate restaurants — that’s up to state and local governments.
So, why should restaurateurs be aware of the FDA’s stances? Basically, some states and localities have incorporated the FDA’s guidance into laws and policies affecting what restaurants can sell. For example, some states have prohibited the use of cannabis products that have not been recognized as safe by the FDA.
Currently, the FDA’s position on CBD is that it is not legal, in interstate commerce, to sell a food to which CBD has been added. That’s because the FDA views CBD as a drug, and has not issued a regulation approving the use of CBD in food or beverages.
State CBD laws and regulations
The FDA’s position has sometimes played out in surprising ways at the state level.
In California, for example, cannabis is legal for adult use. But in 2018, the state’s department of public health issued a statement concluding that it is prohibited under state law to add CBD to food, regardless of whether it was derived from industrial hemp or cannabis.
A bill is currently making its way through California’s legislature which would change this by legalizing CBD foods and beverages in the state. Meanwhile, restaurants that use CBD face the possibility of having their products confiscated.
In Massachusetts, lawmakers are working to resolve a similar issue. The state’s department of agricultural resources recently issued a policy statement declaring that the sale of any food product containing CBD is unlawful in Massachusetts.
In response to outcry from the state’s hemp industry, state legislators recently introduced a bill that would make it legal to add CBD to food and beverages.
Confusion about the legality of CBD-infused alcoholic beverages in Missouri was resolved when the state’s division of alcohol and tobacco control issued a statement saying that it had no authority to regulate CBD products that don’t contain THC.
This cleared the way for CBD beers and cocktails, but left open the question of whether it’s legal to add CBD to other beverages or foods in the state.
Local CBD policies
Confusion about CBD is not limited to state and federal agencies. Local governments are getting in on the confusion, too.
New York City had been seeing a proliferation of CBD-infused foods and beverages in trendy restaurants, bars, and coffee shops throughout the city. But on July 1, 2019, the city’s health department began enforcing a ban on CBD in food and beverages.
Currently, restaurants that defy the ban risk having their products embargoed. And beginning on October 1, the department will begin issuing violations that could be subject to fines or count toward the establishment’s letter grade. Some city council members have pushed back against the ban, but as of this writing it remains in place.
In each of the examples above, restaurants were incorporating CBD into their menus in the absence of rules from their state and local regulators.
When these agencies chose to issue policies, they shifted CBD out of its legal gray area—and suddenly, restaurants that had been offering CBD found themselves in violation of the new rules.
Ultimately, your level of risk varies depending on your location. To decide whether CBD is right for your menu, make sure you have your legal bases covered. These are a few first steps to get you started:
- Familiarize yourself with your local laws concerning CBD and hemp
- Consult your attorney (or find one who specializes in cannabis and hemp)
- Check with your restaurant association
Other ways to use cannabis in your restaurant (wherever you are)
If your state or local authorities don’t permit the use of CBD oil in your restaurant, you can still incorporate the cannabis trend without running afoul of the law.
Whether grown from a hemp or high-THC variety, cannabis seeds do not produce either CBD or THC. This means that neither hemp seeds nor hemp seed oil contain CBD. Rather, CBD is extracted from the plant’s flowers, or from its leaves and stalks.
This means that there are other cannabis options on the table. In fact, in December of 2018, the FDA concluded that the following hemp seed-derived ingredients are generally recognized as safe (GRAS) for human consumption:
- hulled hemp seed
- hemp seed protein powder
- hemp seed oil
And while they don’t contain cannabinoids, hemp seeds and hemp seed oil have plenty of wellness clout of their own. These ingredients offer a variety of essential nutrients, including protein, vitamin E, calcium, iron, magnesium, phosphorus, potassium, sodium, sulfur, and zinc.
Meg Kramer is the Managing Editor of CBD Hacker. She's a writer and editor who has covered topics in science, health, and education. When she's not writing about CBD, you can find her playing with her dogs or perfecting her bagel recipe.