Food and Drink

Businesses look for loopholes, guidance amid CBD usage confusion

Alex Cason Photography
Make any smoothie a CBD smoothie at Smooth Monkey.
Alex Cason Photography Make any smoothie a CBD smoothie at Smooth Monkey.

If you’re a foodie, you’ve likely heard of Cannabidiol, or CBD — THC’s supposedly straight-edge cousin that is also derived from the marijuana plant. CBD is believed to relieve anxiety, insomnia and other ailments. Over the past year, the trendy oil has transitioned from a topical cure-all to an edible one, making its way into everything from gummy bears and protein bars to coffee and kombucha.

Yet in February, the North Carolina Department of Agriculture released a statement saying the usage of CBD in food and drink violates state and federal law because the Food and Drug Administration classifies it as a drug. The NCDA said all establishments offering edible CBD-infused goods should stop selling them immediately, and that the department would be sending manufacturers and retailers a letter detailing what is legal to sell in North Carolina.

Despite the warning, many Charlotte business owners are still unclear about if or how the state’s edict pertains to them. Not only have they not received letters explaining regulations, but they’re also unsure who to contact to ask questions about laws regarding CBD.

“We’ve never been contacted by the FDA, and I haven’t received any information on how to regulate it,” said Jeff Tonidandel, who owns Haberdish in NoDa. The restaurant’s CBD cocktail, The Apothecary, has been on the menu since fall 2018. After a  Charlotte Observer article about the state’s CBD regulations was published last month, Haberdish stopped selling the drink for two days in order to discuss alternatives with their CBD supplier.

Tonidandel said in the past, when they’ve been unsure how to properly use new products like, say, liquid nitrogen in drinks, they’ve turned to their ABC contacts, but that structure doesn’t exist for CBD yet. He worried, too, about permanently removing the drink from the menu because they already have so much of the oil in backstock. “We buy it in huge bulk amounts,” Tonidandel said. “We didn’t feel right about putting that much of it to the side.”

The team’s solution was this: Remove CBD from the cocktail but serve it alongside the drink in a vial so customers can add it themselves. Tonidandel said he’s not sure if that’s an adequate workaround, but he doesn’t feel like it’s breaking the law based on what he knows so far.

A post shared by Haberdish (@haberdish) on Feb 24, 2019 at 6:40am PST

When CharlotteFive reached out to Mecklenburg County’s health department to ask whether this “loophole” works, a public information officer said health department officials are following the guidelines the North Carolina Department of Health and Human Services sent them in early March: “At this time food establishments under NCDHHS jurisdiction should not use CBD oil or any other products containing CBD including beverages. The FDA considers this product a type of drug and should not be added to food.” They told CharlotteFive NCDHHS would have to weigh in on the Haberdish workaround.

When asked about serving CBD on the side, NCDHHS did not respond to the question directly. Instead, a spokesperson pointed to the FDA’s Food Code, specifically Section 3-202.12 of Annex 3, which says, “Food additives are substances which, by their intended use, become components of food, either directly or indirectly.”

NCDHHS also sent CharlotteFive a statement from branch head Shane Smith, who’s in charge of Food Protection and Facilities. The statement said local health departments would be regulating CBD usage at retail food establishments, and that the FDA’s Food Code also requires “…food to be protected from the addition of unsafe or unapproved food additives.” The statement said restaurant owners should expect to be informed of this interpretation during the next routine food establishment inspection. “Subsequent inspections for establishments that use CBD in food or drink products may result in point deductions or other regulatory action,” the statement said.

Courtesy of Max & Lola Bodega

Still, without official notice or a clear yay or nay, some local retailers have decided to continue with business as usual. In the Gold District, Max & Lola Bodega, which bills itself as a wine bar, bottle shop and CBD bar, is continuing to sell CBD oil meant for consumption, said owner Holly Rodriguez, but, like Haberdish, they’re now packaging it separately instead of serving it in food or drink. “Until we see get anything official, per our lawyer, we’re leaving it up to the customer,” she said. “People actually like it more because now they can take it to-go.”

Rodriguez said she has also not received an official letter about the regulations and is not quite sure what’s happening, but she did add that her team spends a lot of time researching their CBD suppliers to make sure the product is safe, a point Tonidandel emphasized as well.

“It’s been very confusing and a lot of hearsay,” Haberdish owner Tonidandel said of the state’s CBD regulations. “We try and be more conservative on this stuff. I would love to hear a definitive answer.”