Beauty fans will try anything at least once.
A newly available, cannabis-derived ingredient has disappeared from cocktails and smoothies in metro Detroit. And it could be years before it’s back.
Cannabidiol, known as CBD, doesn’t cause the psychoactive effects of marijuana, but it’s claimed to have therapeutic benefits and to help people relax. In the past couple of weeks, it was introduced in drinks at Ale Mary’s in Royal Oak, ChickP in downtown Detroit and other bars and restaurants.
But local health officials ordered these business owners — and at least three others — to stop, citing federal Food and Drug Administration rules.
“It was fun for a minute,” Ale Mary’s owner Nick Ritts said a few days after removing drinks including the Mellow Melon cocktail (made with muddled strawberries, simple syrup, Tito’s vodka and Melon Sprig soda) and others from the menu. “It was crazy. We were selling so many of them.”
Multiple changes in laws and regulations at the state and federal level in the past year appear to have created confusion in Michigan, leading to perceptions that it was OK for businesses to serve CBD-infused food and drinks.
But the Oakland County Health Division and the Detroit Health Department both took action shortly after they began to be publicized, making clear that it’s not OK.
“Anything you put in food has to be regulated by the (U.S. Food and Drug Administration),” said attorney Barton Morris, adding that it’s “unlawful” to sell a product that isn’t.
It will likely take years for CBD to get regulatory approval, he said, but given what’s known about CBD and its effects, he believes it will probably be approved eventually.
Bobcat Bonnie’s restaurant and Sneakers Pub, both in Ferndale, as well as Ale Mary’s in Royal Oak, all received citations in the past few weeks for putting CBD in products they served, according to Oakland County Health Division. They didn’t face penalties or fines, but they were ordered to correct violations within 10 days.
“At this time, incorporating CBD oil or industrial hemp into food products is not allowed,” according to a statement from the health division, adding that while laws have separated industrial hemp from the definition of marijuana, “that does not automatically make it acceptable to incorporate into food. Those substances are still illegal at the federal level and (Michigan Department of Agriculture and Rural Development) typically relies on the federal government to determine what is considered generally regarded as safe.”
There don’t appear to be reports of CBD products recently being taken off retail store shelves in Michigan. But in Ohio and Maine this month, the state health departments ordered edible CBD products removed from stores. As reported by the Portland Press Herald, inspectors “have told business owners they can still sell CBD products that can be smoked, vaped, worn as a patch or applied as a lotion, and all medical marijuana patients can still buy oral CBDs from licensed caregivers or dispensaries.”
Morris, who specializes in defending marijuana clients, is principal attorney with the Royal Oak-based Cannabis Legal Group. He said there isn’t a gray area in the law when it comes to CBD and the FDA.
“I knew that that was going to be enforced as soon as they had the ability to do so,” he said. “You can’t do that.”
Nonetheless, CBD is quite popular: Chefs across the country say cannabis-infused food and drinks are the top two dining trends they expect to see unfold in 2019, according to an annual poll for the National Restaurant Association. The poll included more than 650 professional chefs. Of those, 77 percent said CBD drinks are the No. 1 trend they see for 2019, followed by CBD foods, USA Today reports.
The Free Press reached out to the Food and Drug Administration, and a spokesperson referred to a lengthy Dec. 20 statement indicating in part that both CBD and THC (tetrahydrocannabinol, the psychoactive ingredient in marijuana) “are active ingredients in FDA-approved drugs and were the subject of substantial clinical investigations before they were marketed as foods or dietary supplements.
“Under the (Food, Drug and Cosmetic) Act, it’s illegal to introduce drug ingredients like these into the food supply, or to market them as dietary supplements. This is a requirement that we apply across the board to food products that contain substances that are active ingredients in any drug.”
And that includes CBD derived from hemp as well as marijuana, according to the FDA. The federal 2018 Farm Bill signed in December legalized industrial hemp in the United States and led to the surge in CBD products recently, including those offered in bars and restaurants.
And in Michigan, state Rep. Steve Johnson, R-Wayland, sponsored a bill that became law in January and allows for the use of CBD oil from hemp.
“CBD oil derived from hemp doesn’t get you high,” Johnson said in a news release. “It contains no more than 0.3 percent Tetrahydrocannabinol (THC). But the Michigan Department of Licensing and Regulatory Affairs decided last summer to start classifying it the same way they do marijuana, which contains 5 to 35 percent THC.”
The state legislation allows for CBD oil and other products from hemp fall under the definition of industrial hemp, rather than marijuana. But local health officials have cited the federal FDA in reference to these instances in bars and restaurants.
And Morris said that while the Farm Bill legalized hemp, that merely removed it from the controlled substance category; the FDA regulations are separate.
But that’s not stopping Sprig, a company based in Orange County, Calif., that sells CBD in cans of soda with flavors such as citrus, lemon tea and melon. It continues to ship to “hundreds of accounts” in Michigan and across the country, said Sprig CEO Michael Lewis.
“No one has reached out to us at this point — any sort of federal or state regulatory agency, or even municipal health department,” he said.
He pointed out how the Farm Bill removed the risk of criminal prosecution, and he acknowledged that the FDA hasn’t regulated it as a food ingredient.
“So you have this little discrepancy going on at the federal level,” he said. “The FDA needs to update its guidance.”
Paul Tylenda, a defense attorney based in Grosse Pointe Park, said that once CBD goes through some tests and trials, “it will probably just become another additive” like ginseng or ginkgo biloba.
“I think it’s a great lawsuit, because if this is a legal product, and so is everything in Red Bull, then why are you treating them differently?” Tyenda said.
He pointed out that the violations businesses are facing from local health departments are different from criminal prosecutions over controlled substances. And he said it will just take “a little bit of time for the policy on paper to catch up with the laws and what everybody wants it to be.”
“With the newness of CBD and marijuana laws, it’s still pretty sexy as a topic,” he said. “It’ll be a boring issue, likely by the end of the year.”
At Ale Mary’s, Ritts said the ending the CBD service has been “a relief.”
He said they only have 50 seats, and demand for the three CBD cocktails was high — they sold hundreds before they were stopped.
“It was one of those things to where it was a flash in the pan,” Ritts said. “Big hit, and then it started to go down.”
And they’re not noticing any big loss in customers.
“Vegan milkshakes: They are addicted to those,” he said, and people weren’t hooked on CBD. “With this, it’s more like, ‘I’ll try it and see what it does.'”
Contact Robert Allen on Twitter @rallenMI or firstname.lastname@example.org.
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