CBD Crackdown: FDA Will Continue to "Closely Scrutinize" Risky Products

This week, state and local authorities cracked down on foods containing the increasingly popular cannabis extract cannabidiol, better known as CBD. Public health officials in Maine, New York City, and Ohio have banned sales of foods containing CBD, citing US Food and Drug Administration guidelines. On Wednesday, North Carolina appeared ready to follow suit. As the dominoes fall, however, the FDA is remaining mostly silent on the multi-state crackdown.

Officials from the federal food safety authority have not been willing to clarify whether it is behind the move, despite the fact that the efforts across multiple non-adjacent states give a strong impression of a coordinated effort.

“There is ongoing communication with state and local officials to answer questions about the requirements under the FD&C Act, to better understand the landscape at the state level, and to otherwise engage with our state/local regulatory partners,” an FDA spokesperson tells Inverse, citing the Federal Food, Drug, & Cosmetic Act. This act prohibits prescription drugs — like CBD, which is the main ingredient in the anti-seizure drug Epidiolex — from being added to food products.

Owners of some businesses that sell edible CBD products are, understandably, concerned.

Health officials in Maine, New York City, and Ohio visited businesses that make and sell CBD-fortified food and drinks, in each case classifying the edibles as “embargoed” — meaning they’re not confiscated but also can’t be sold — and warned businesses to stop selling them or face potential penalties. In North Carolina, retailers have been issued warning letters doing the same. And in each case, officials cited the FD&C Act.

In New York City, one of the businesses where CBD products are now embargoed is Fat Cat Kitchen, a restaurant and bakery selling CBD-containing pastries like Rice Krispie treats and cookies. Its owner C.J. Holm, tells Inverse she fears that this is the beginning of a major nationwide sweep by authorities to prevent small business from profiting on CBD.

"This is the tip of the iceberg.

“This is the tip of the iceberg,” says Holm. “This is the beginning of control over a product that is in high demand and creating profits. They want a piece.”

CBD has become widely available in stores and online in the form of oils and extracts, but it is popularly added to foods like gummies, lattes, chocolate, cookies, and even seltzer. People who use it tout its anxiety-reducing, pain-relieving, and relaxing qualities, though the scientific evidence underlying these effects is limited. Unlike the notorious marijuana-derived chemical THC, CBD is not psychoactive and does not get people high.

Other businesses that sell CBD-containing lotions, oils, and capsules do not seem to be directly affected by the crackdown because it is, at least for now, only targeting foods containing CBD.

One such business is Come Back Daily, an “experiential CBD hub and retail store” in New York City. Founder Steven Phan says that structure and regulation would likely improve the CBD market — which has been notoriously unregulated in some cases. He’s not worried about his company’s future.

"I’m not as critical about what’s happening because I think it’s necessary.

“I’m not as critical about what’s happening because I think it’s necessary,” he tells Inverse. “We’re signing off on things that are being put into people’s bodies, and that means regulation is necessary. I welcome it.

The FDA, however, also makes it quite clear that dietary supplements containing prescription drugs are also not considered acceptable under the FD&C Act. So far, businesses like Come Back Daily that sell CBD supplements haven’t been contacted by local regulators, but the FDA isn’t ruling it out.

“FDA will also continue to closely scrutinize products that could pose risks to consumers,” the FDA spokesperson tells Inverse. “Where we believe consumers are being put at risk, the FDA will warn consumers and take enforcement actions. In particular, the agency continues to be concerned at the number of drug claims being made about products not approved by the FDA that claim to contain CBD or other cannabis-derived compounds.”

Phan, for one, thinks the FDA is simply waiting to see the right stance to take. He doesn’t think the FDA or the New York City Department of Health and Mental Hygiene, which is behind the crackdown in New York, is going to kick his door down anytime soon. Though if it happens, he’ll cross that bridge when he comes to it.

“I’m just going to keep doing things as-is until they inform me otherwise,” says Phan. “Whatever happens, even if it makes me have to adjust my business, we’ll just have to pivot with it until there’s further understanding and comfortability within the space.”

Additional reporting by Emma Betuel.

Email the author: peter.hess@inverse.com