The state Department of Agriculture and Markets has suddenly decreed that "No food or beverage product may be made or sold in New York State if it contains cannabidiol (CBD) as a food, a food additive or an ingredient."

The Department called it a "clarification" of its "position," but this was news to our industry. NYACS is unaware of any previous communication by the Department to the trade concerning CBD-infused products.

"Food or beverage products that are found by Department inspectors, in either a processing facility or in the marketplace, to contain CBD are considered adulterated (FD&C Act, sec. 301(b) and AML, sec. 200)," said the announcement, which was emailed to NYACS on July 19, 2019, after 5 p.m.

Ag & Markets said such products "are subject to enforcement actions taken by the Department or the U.S. Food and Drug Administration" possibly including:
   - "Voluntary removal of products"
   - "Seizure and/or destruction of products"
   - "Issuance of a fine and/or a failing sanitary inspection"

The Department invited anyone with questions to contact its Division of Food Safety and Inspection at This email address is being protected from spambots. You need JavaScript enabled to view it. or its Division of Milk Control at This email address is being protected from spambots. You need JavaScript enabled to view it. or 518-457-1772 with any questions.

NYACS emailed this question: Which subsection of Section 200 of the state Agriculture and Markets Law, titled "Adulteration of Food," applies here?

Their response: "Both AML 200.1 and 200.2 apply, they read as follows:"

Food shall be deemed to be adulterated: 

1. If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this subdivision if the quantity of such substance in such food does not ordinarily render it injurious to health.

2. If it bears or contains any added poisonous or added deleterious substance other than one which is (a) a pesticide chemical in or on a raw agricultural commodity, (b) a food additive, or (c) a color additive, which is unsafe within the meaning of section two hundred two, or if it is a raw agricultural commodity and it bears or contains a pesticide chemical which is unsafe within the meaning of section four hundred eight-a of the federal food, drug and cosmetic act, as amended, or if it is, or it bears or contains, any food additive which is unsafe within the meaning of section four hundred nine of such federal act, as amended; provided, that where a pesticide chemical has been used in or on a raw agricultural commodity in conformity with an exemption granted or a tolerance prescribed under section four hundred eight of such federal act, and such raw agricultural commodity has been subjected to processing such as canning, cooking, freezing, dehydrating or milling, the residue of such pesticide chemical remaining in or on such processed food shall not be deemed unsafe if such residue in or on the raw agricultural commodity has been removed to the extent possible in good manufacturing practice, and the concentration of such residue in the processed food, when ready to eat, is not greater than the tolerance prescribed for the raw agricultural commodity.

According to Ag & Markets, if CBD gummies are labeled as a dietary supplement (look for the Supplement Facts panel on the label), they can be sold, but if they are labeled as a food (Nutrition Facts panel), they may not.
 
The Department said hemp seed products can continue to be sold, because they are generally regarded as safe. The issue surrounds the extraction of CBD from other parts of the hemp plant and its use in food and beverages.
 
"We are taking an educational approach to this rather than going right to enforcement," said Jennifer Trodden, Deputy Commissioner. They're not sending out a CBD strike force to seize CBD products. Rather, as Ag & Markets personnel conduct their routine sanitation inspections, should they observe illegal CBD products, action will be taken. The Department expects that 99 percent of retailers, once informed, will voluntarily remove such products from their shelves.

Read Ag & Markets CBD Q & A
 
See Copy of Ag & Markets Letter

Read FDA FAQ on CBD Products