PRLA Restaurant & Lodging Matters Fall 2019

Fall 2019  •  PENNSYLVANIA RESTAURANT & LODGING matters  • 11 While it is readily available nearly everywhere, the legal status of CBD is still a relatively gray area. The government’s position depends on whether the oil was sourced from a hemp plant or a marijuana plant. Hemp and marijuana plants are virtually indistinguishable from one another just by looking at them. The difference lies in the level of the THC chemical present. A hemp plant has less than 0.3 percent THC present. Everything above 0.3 percent THC would be considered marijuana. In Pennsylvania, where only medical marijuana is legal, oil sourced from the marijuana plant, called CBD cannabis oil, is only legal for qualified patients and follows all the medial marijuana laws. Thanks to the 2018 Federal Farm Bill, which legalized industrial hemp and its derivatives (including hemp CBD), you can purchase CBD hemp oil in Pennsylvania without a prescription. The Federal Farm Bill does permit states the ability to be more restrictive. For example, Virginians can only buy and possess CBD oil from either source if they have a prescription. According to the FDA, CBD remains federally unapproved as a food additive. Enforcement by the FDA has been primarily focused on warning letters to companies that marketed their CBD products as capable of preventing or treating serious diseases. The agency also has advised against identifying the substance as a dietary supplement. Bake Magazine summed the legal situation as follows: “The lack of regulation from the FDA, ever-changing state and local laws and CBD’s popularity with consumers has created a Wild West marketplace. In a vacuum of standardization, consumers are at the mercy of suppliers and producers.” The FDA held a public hearing on May 31 on the legalization of CBD-infused foods and beverages and allowed public comment through mid-July. The FDA is now sifting through more than 3,000 comments to develop its path forward. Enforcement has been left to state and local officials. California, where recreational marijuana is legal, has cracked down on CBD-infused food and drink by forcing small businesses to pull products off their shelves after receiving complaints. New York City health inspectors removed CBD products from a number of restaurants, and officials in Ohio and Texas are increasing enforcement as well. The Pennsylvania Liquor Control Board is expected to release an advisory opinion stating that, in their opinion and because of the FDA’s position, it is illegal to use CBD as an ingredient in alcoholic beverages. Is CBD legal?