Baltimore restaurants put CBD on the menu. Is it legal?

Mother’s Federal Hill Grille co-owner Dave Rather said a CBD-infused rub helped get his son back on his feet after an ankle injury. Now, the bar and restaurant he runs offers customers the chance to try the substance out for themselves with an array of CBD-infused cocktails and beverages.

“People are interested,” he said of the infused drinks, introduced this summer. “We’ve sold a decent amount.”

Rather is among several Baltimore restaurateurs who have capitalized on the popularity of CBD, a hemp-derived cannabis product, as medical marijuana sales continue to rise in Maryland. Eateries like Canton’s Coelum and Mount Vernon’s Melody Cafe offer infused menu items ranging from salad dressings and smoothies to syrups and pastries.

Found in other conventional restaurants as well as cafes, coffee shops, bars and even pet stores, hemp CBD (cannabidiol) does not contain the psychoactive properties of THC (tetrahydrocannabinol), the primary active ingredient found in marijuana. The cannabis-derived compound, considered by many users as a pain reliever, stress suppressant and wellness supplement, can also be purchased at convenience stores or online by Maryland customers without medical marijuana certifications.

Rather and other CBD advocates say the substance provides natural relief for various ailments as well as anxiety and sleep disorders. It also entered the medical mainstream last year with Epidiolex — the first and only U.S. Food and Drug Administration-approved prescription cannabidiol — which researchers found reduces the frequency of seizures in patients with some forms of epilepsy.

But CBD remains federally unapproved as a food additive, and some argue that infused restaurant menu items are illegal and potentially dangerous for consumers.

[ ICYMI: CBD drinks are a no-no. Annapolis shops sell them anyway ]

Deborah Miran, Maryland’s former medical marijuana commissioner, called the sale and ingestion of CBD in food establishments a “nightmare" for all parties involved.

“The FDA has not figured out how to enforce this,” she said. “How do you put the horse back in the barn now?”

Miran said there were three main concerns about CBD: Lack of a universal dosage amount, limited medical understanding of how the substance interacts with other medications and bodily conditions, and an absence of a direct reporting mechanism for abuse or adverse events. Consequently, she said, some distributors misrepresent their products.

A University of Pennsylvania study published in 2017 found that nearly 70% of CBD products sold online were mislabeled, containing either more or less of the substance than described. Additionally, the FDA has previously sent warning letters to companies that marketed their CBD products as capable of preventing or treating serious diseases and has advised against identifying the substance as a dietary supplement.

Miran said she worries consumers are taking marketing campaigns and labels at face value.

“There’s a huge level of concern about where it’s coming from, how it’s extracted, how it’s tested and how it’s produced,” Miran said. “It has to be very highly regulated and cleanly distributed, and we just don’t know that right now.”

Maureen Regan, a Maryland Department of Health spokeswoman, wrote in an email that the Environmental Health Bureau considers any food or beverage that contains CBD “adulterated.”

“It is unlawful for any establishment to manufacture, sell, offer for sale or receive in commerce any food that is adulterated,” Regan wrote in the email. “We have asked local health departments to report these products to us so that we can forward them to the FDA for further investigation.”

Regan said in an email that the department is in the process of working with local health departments to compile cases to refer to the FDA.

According to an FDA web post, the government entity “recognizes the significant public interest in cannabis and cannabis-derived compounds, particularly CBD” but cautions that little scientific research on the substance exists, including about its effects on the body over extended periods of time.

“The Agency is working on answering these questions through ongoing efforts including feedback from a recent FDA hearing and information and data gathering through a public docket,” according to the online bulletin.

In another web post, last updated in April, the agency said it considers the addition of THC or CBD to any food a “prohibited act."

“Any substance intentionally added to food is a food additive, and therefore subject to premarket review and approval by FDA,” according to the post.

William Bogot, a partner at the Fox Rothchild legal firm in Chicago who specializes in cannabis law, said local restaurateurs may still feel comfortable offering CBD to customers since the FDA has generally been emphasizing its enforcement activities on large companies that make egregious health claims.

“They don’t want people thinking they’re going to get cured from this and not [take] their other medications,” he said, adding that he anticipates a more structured regulatory approach and additional guidelines to come out this fall. “It’s hard for the FDA to be everywhere.”

Bogot said the FDA may also be limiting its enforcement activity while it continues to investigate the substance. To his knowledge, he said, penalties have largely consisted of warning letters instructing businesses and individuals to correct the violations or else be subject to further legal action.

“We’re in this weird, middle period right now,” he said. “If they conclude that there’s no adverse effects, people in the industry are hopeful that they can regulate it like any dietary supplement, like fish oil."

Restaurant staffers, managers and owners said they consider CBD the “wave of the future” and are optimistic about its business potential.

“It’s amazing that it’s taken this long to come into play,” Rather said, adding that a five-milligram dose of the substance sells for $3 and a 10-milligram dose sells for $5 at his popular South Baltimore eatery. “But not many people understand it yet, so it’ll take some education, and that takes a little while.”

[ ICYMI: At Baltimore’s Coelum restaurant, go for the foie, skip the CBD ]

Rather also said the restaurant’s first priority is customer satisfaction and safety.

“If the state or city health department said, ‘you can’t do this,’ then we would stop immediately,” he said. “We try to appeal to the masses, but sometimes by doing that, you’re going to turn off individuals.”

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While some say the substance lacks any flavor, others describe it as possessing an earthy aftertaste. CBD oil dissolves into food and drinks and is often dispensed with an eyedropper.

Melody Cafe manager Juwuan Davis said customers have expressed consistent interest in the substance since the two-year-old Mount Vernon shop debuted it in July, adding that the restaurant infuses it into coffees, teas, pancakes, French toast and other offerings for prices ranging from $3 to $9.

He also said that the cafe’s staff feels comfortable serving hemp CBD because of its widespread availability and because the substance doesn’t cause the euphoric “high” associated with marijuana.

“Certain people walk in, and we already know what they want because they get it so much,” he said. “People have been happy about it.”

Echoing this sentiment, Canton’s new Coelum restaurant uses CBD to entice customers.

“So far, people have been happy and trying it,” said managing partner Pierre Michenaud. At Coelum, a 12.5 milligram dosage of the substance sells for $5.

“We do have occasional second orders,” added sommelier and general manager Ryan Thacker, who said staffers have been instructed to describe it as an additive rather than a dietary or health supplement. “It’s been pretty well received.”