New York City Claims Veto Power Over Food Ingredients in CBD Ban

It's legal, but the health department thinks it's somehow different when added to other products.


CBD-infused lemonade
Richard B. Levine/Newscom

New York City's health department is cracking down on bakeries and restaurants that are putting the marijuana derivative cannabidiol (CBD) in foods and drinks, even as the state approaches the possibility of legalizing pot.

CBD lacks the psychoactive components to get users high, but it has become a trendy additive in foods among people who say it helps calm them and relieve stress. Whether this is actually true or just marketing nonsense remains to be seen (Mike Riggs wrote a lengthy piece about CBD's actual benefits and the current foodie trends in Reason's February issue).

There's an almost comical twist in how and why the city is cracking down on the additive. It's actually not really about whether CBD itself is legal or illegal. The New York Daily News says that CBD derivatives are legal in New York City, but it's a bit more complicated and depends on whether the oil originates from marijuana or hemp. And then there's the matter that the Drug Enforcement Administration believes it's all illegal because marijuana is still a Schedule 1 drug.

But that's not what's going on here. The issue is that the New York City Health Department has not given local businesses permission to add CBD to food and drinks. It is not an "approved" addition. New York City health nannies declare that they have policy-making powers to veto individual food ingredients. From the New York Daily News:

While CBD is legal, the Department of Health says it runs afoul of rules prohibiting restaurants from adding additives to food and drink — a policy change the city made with little or no public notification.

"Restaurants in New York City are not permitted to add anything to food or drink that is not approved as safe to eat. The Health Department takes seriously its responsibility to protect New Yorkers' health. Until cannabidiol (CBD) is deemed safe as a food additive, the Department is ordering restaurants not to offer products containing CBD," a health department spokeswoman said.

Eater notes that when a bakery was ordered to stop selling CBD-infused cookies and pastries, its owners called the health department and claimed that two staffers at the department couldn't explain what was wrong and apparently didn't even seem to know what CBD was.

Eater also notes a similar issue taking place in Maine. State health officials there are saying that CBD has not been approved to as a food additive and cannot be sold in cookies and snacks.

However, in both states, it's largely legal to sell and consume the CBD oil itself (or to vape it). So these health departments are just imperiously acting as though something magical happens when it gets put into food or drink.

The argument here is particularly nannyish—they're saying that people who want to put CBD into food have to prove to health agencies that it's safe. Freedom should require the exact opposite: If the Health Departments wants to forbid businesses from adding an ingredient to food, shouldn't the onus be upon them to prove that it's not safe?

This blanket ban has the potential to harm the bottom lines of many restaurants and bakeries attempting to survive in a tough marketplace and capitalize on current trends. It's a knee-jerk, intrusive response to something that might just be a flash-in-the-pan gimmick anyway.