Friends – more evidence this morning that the transition of hemp-based CBD into a legal market won’t be simple. A story from Eater about NYC health inspectors confiscating food products containing CBD (link; also mentioned in today’s NYT, which cites other instances (link)).
Why, you may ask, are they doing this? Well, as the article notes, CBD in food is still illegal under FDA rules (see my blog! and, also, my blog!). Perhaps the local Department of Health could have pointed this out to the café owner, who just saw “half my business” closed down by the City confiscating illegal products (meaning they were either selling a lot of CBD-based pastries, or not much else?).
To be fair, there has always been a lot of confusion over the legality of CBD, even before the FARM Act. The hemp industry for a long time took the position that hemp-based CBD was legal based on an interpretation of FDA guidance that considered the trace-level amounts of THC in the product. Others disagreed (including yours truly) with this interpretation. Even now, it’s not unfair that a consumer might be confused about why they can by a CBD balm at Whole Foods, but they can’t buy a delicious bran muffin (aka “cake”) or heavenly potato knish infused with CBD, let alone why hemp-based CBD is legal but Cannabis-based CBD is not. However, at the same time, a quick Google search by a business owner could clear some of this up.* This is a cautionary tale for when Cannabis is made legal (see my blog) – there ought to be better education by the industry and quick action by regulatory authorities to protect consumers and business alike.
Speaking of cautionary tales, if you’re a lawyer, particularly a Cannabis lawyer, don’t commit securities fraud.** (link)
*Or, they could ask their friendly Cannabis lawyer, to help avoid regulatory violations and product liability claims….
**Technically, not legal advice, but come on, really?
Written by: Marc Hauser