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 But since then, New York City health inspectors have seized
thousands of dollars worth of CBD-infused food and drinks at the Fat
Cat Kitchen and other local cafes and restaurants, and warned owners
to stop selling them or face penalties. The crackdown came just
weeks after federal law explicitly made CBD legal across the
country.
The New York City crackdown highlights the inconsistencies that have
emerged in federal, state and local rules governing CBD, bewildering
the small but growing number of businesses selling edibles in New
York and other states.
"I'm trying to be compliant with the law, but no one seems to be
fully aware of what the law is and isn't," said C.J. Holm, the owner
of the Fat Cat Kitchen, which touts CBD coffee and cookies on a
sidewalk chalkboard.
Consumer interest in CBD tinctures, topical creams and edibles has
grown in recent years in step with the piecemeal legalization of
marijuana, which is now permitted as either a medical or
recreational drug in 33 states while still banned by the federal
government.
In 2018, U.S. consumers spent an estimated $300 million on CBD food
and drinks, according to a report by Cowen Washington Research
Group. The Coca-Cola Company and other food giants have expressed
interest in the sector.
The 2018 Farm Bill, enacted in December, was intended in part to
clear up the legal status of CBD by legalizing cannabis extracts
derived from strains of the plant, known as hemp, that contain very
low concentrations of THC, the main psychoactive compound in
marijuana.
But the law also created new confusion for businesses wanting to
sell CBD food or drink. For some, it is impossible to follow one set
of regulations without being in breach of another.
In New York, for example, officials at the state Department of
Agriculture issued guidance in December saying it was legal to sell
"CBD tea," "chocolates with CBD drizzle" and other CBD edibles, so
long as the products are made and marketed as dietary supplements,
which are governed by more stringent standards than ordinary food.
But the department also warns that doing this will run afoul of
rules issued by the U.S. Food and Drug Administration, which said it
was unlawful to add CBD to food or to market it as a dietary
supplement. That is because the agency, for the first time last
year, had approved a drug that contained CBD as the active
ingredient.
New York City health inspectors have taken the FDA rule seriously.
At the Fat Cat Kitchen, Holm was startled when a health inspector
impounded her CBD powder, honey, snacks and raw cookie dough in
February. Similar scenes played out at four other eateries in the
city.
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Soon afterward, Holm and other restaurateurs received a letter from
the department saying inspectors would resume the seizures after
July 1.
It is unclear whether the city's Health Department will allow cafes
and restaurants to sell CBD edibles even as a dietary supplement,
despite New York state officials saying such products are legal.
When asked, Michael Lanza, a Health Department spokesman, repeated
the department's position that it is following the FDA ban on CBD
food and drink in any form. An FDA spokesman declined to comment on
New York's regulations.
Colorado, Maine and other states have attempted to clarify the
status of CBD-laced edibles by passing laws allowing the addition of
CBD to food.
The FDA has said it may make an exception for CBD, allowing it as a
food additive or dietary supplement even though it is now a listed
drug. It will hold a public forum on the issue in Maryland on May
31.
With the conflicting rules and at best haphazard enforcement, Holm
and other CBD vendors say they are pressing ahead, devising their
own strategies that they feel are at least a gesture toward
compliance.
Igor Yakovlev, who stirs CBD into honey on New York's Staten Island,
prints a disclaimer on each Beezy Beez Honey jar stating that the
FDA has not "evaluated or approved" his product.
Holm, in consultation with a lawyer, noted that the FDA bans CBD
being added to food for "interstate commerce," and reasons she is
fine to sell CBD coffee so long as the extract is produced and
processed in New York.
"It is so confusing because you can ask three different attorneys
and get three different answers," said Allan Gandelman, a farmer in
Cortland who founded the New York Cannabis Growers and Processors
Association earlier this year. "So you decide you're going to blaze
a path forward, and produce a product that customers really want,
and go for it until the government gets its act together."
(Reporting by Jonathan Allen in New York; Editing by Frank McGurty
and Dan Grebler)
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