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State pursues sale of CBD edibles on complaint-only basis, Maryland Department of Health documents reveal

Sublingual CBD Oils available for purchase at Java N Jane, an Annapolis based cafe that serves coffee and CBD-infused products. Local health departments are being tasked with investigating companies that are selling CBD-infused products, but only on a complaint basis. This means only some businesses have been penalized while others are continuing to profit off CBD.
Sublingual CBD Oils available for purchase at Java N Jane, an Annapolis based cafe that serves coffee and CBD-infused products. Local health departments are being tasked with investigating companies that are selling CBD-infused products, but only on a complaint basis. This means only some businesses have been penalized while others are continuing to profit off CBD. (Ulysses Muoz / Baltimore Sun)

After the U.S. Food and Drug Administration dropped its ban on hemp-derived products in 2018, cannabidiol oils, pills and creams flooded the health and wellness market as an alternative to traditional vitamins and pain relievers. But infusing food and drinks with CBD remains prohibited.

Neither the FDA nor Maryland allows CBD to be added to edible products.

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Despite that, the compound has permeated the food and restaurant industry, in Maryland and nationwide, as CBD-infused smoothies, gummy snacks, baked goods and cocktails appear on dozens of menus and dispensary product lists. More and more places are selling CBD consumables as retailers misinterpret or disregard the regulations altogether.

The FDA has largely left enforcing CBD laws to the states, legal experts said, and enforcement in Maryland, where CBD-infused consumables are considered “adulterated,” has been uneven. Some local health departments, at the direction of the Maryland Department of Health, have intervened with retailers selling foods and drinks made with CBD. Through Feb. 7, the state’s health department has logged local investigations into about 20 businesses for CBD-related violations of state food laws, according to documents obtained by The Baltimore Sun in public records requests.

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Some were investigated multiple times. All were ordered to stop. Many complied. Others still sell the products even after being reprimanded.

Derived from hemp, CBD does not share the psychoactive properties of marijuana. Some consider the substance — also available in vape cartridges, bath bombs and pet products — a pain reliever, stress suppressant and wellness supplement, akin to over-the-counter medications or acupuncture.

Last year, CBD entered the medical mainstream with Epidiolex — the first and only FDA-approved prescription cannabidiol — which researchers found reduces the frequency of seizures in patients with some forms of epilepsy.

The state health department generally only looks into sellers after receiving a complaint, unless it discovers the sale of adulterated products during the inspection or investigation into another issue, the documents show. Further, the department refers companies to the FDA for investigation when the products tout unverified health claims or when the sale involves products manufactured outside of Maryland, as the agency explicitly prohibits selling CBD-tainted consumables through interstate commerce.

That leaves many others free to continue to skirt the rules.

In the absence of federal approval or regulation, some urge caution, arguing CBD-infused products are potentially dangerous and possibly illegal.

Without oversight, some distributors have mislabeled or misrepresented their products, advertising unsubstantiated health claims about their effectiveness. And with limited research on its effects on the body over time, some health officials say important information about CBD remains unknown, especially how it interacts with other drugs, chemicals or medications.

CBD-infused treats for dogs were available for purchase at Java N Jane in October. Local health departments are being tasked with investigating companies that are selling CBD-infused products, but only on a complaint basis. This means only some businesses have been penalized while others are continuing to profit off CBD.
CBD-infused treats for dogs were available for purchase at Java N Jane in October. Local health departments are being tasked with investigating companies that are selling CBD-infused products, but only on a complaint basis. This means only some businesses have been penalized while others are continuing to profit off CBD. (Ulysses Muoz / Baltimore Sun)

To crack down on the sale of CBD consumables, local health departments have been tasked with following up on complaints and reporting their findings to the state’s health department, which collects the information.

Local departments first seek “voluntary compliance," asking operators to discard the products or return them to the distributor, according to the documents. If an operator continues to sell the products, “progressive enforcement action would be taken" coordinated with the Maryland Department of Health and with the Attorney General’s Office, according to an email sent by Kim Burns, chief of the department’s Center for Facility and Process Review, to a local health department official. The email was included in the department’s response to The Sun’s public records request.

The department declined a request to make Burns available for an interview.

Raquel Coombs, a spokeswoman for the Maryland Attorney General’s office, said CBD enforcement varies from county to county since each health department is its own jurisdiction and they operates under different standards. She said she could not discuss any referrals made to the attorney general’s office until enforcement actions are made public.

As of Feb. 7, the state health department has made 37 CBD-related referrals to the FDA since it began collecting information on local investigations in March 2019, spokeswoman Maureen Regan said.

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The FDA declined to comment.

Cannabis law experts said Maryland’s scattered approach to enforcing its edible CBD laws differs from decisions made by other states, such as Virginia — which permits infused foods and beverages, despite the federal prohibition.

Meredith Kinner and John McGowan, managing partners at the Washington-based Kinner McGowan cannabis law firm, said the FDA has sent warning letters to some companies marketing CBD products with claims that they can prevent or treat serious diseases or serve as a dietary supplement, but the attorneys didn’t know of the agency pursuing any additional legal action.

McGowan said the FDA could take a stronger lead in enforcing federal rules about edible products containing CBD. That would provide relief to states such as Maryland, which could be ill-equipped to handle the issue without full knowledge of the substance’s effects on the body and limited ability to regulate commerce.

Kinner said it’s not surprising that Maryland businesses have expressed confusion over its legality, with each state enacting different regulatory guidelines and the FDA mostly taking a backseat role, as it continues to evaluate CBD products.

“People really don’t know the law,” she said.

While many vendors said they have complied with the health department’s CBD rules, others said they have not been deterred. Some expressed confusion and frustration with the selective enforcement actions that penalize some but enable others to profit.

Last April, for example, the Anne Arundel County Department of Health visited Kendall Rae Barnard, owner of Annapolis’ Java N Jane cafe, and told her to stop selling CBD edibles and beverages. She sold infused coffee beans, pre-packaged popcorn, caramels, crispy rice treats and cinnamon crumb cake at the time, documents show.

She got another visit a month later and the health department then served her an order of abatement on May 23, demanding she cease sales of CBD-infused consumables.

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Failure to comply with the order can result in a misdemeanor conviction subject to an $1,000 fine, imprisonment up to 90 days, or both for a first offense; a fine up to $2,500, imprisonment for up to a year, or both for a second offense; or a civil penalty of up to $5,000, according to the abatement order she received.

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Barnard said she felt unjustly targeted by the health department. At the nearby City Dock Cafe, window signs advertised the sale of CBD products. Previously, City Dock Cafe had been visited by the health department and told to stop selling CBD-infused products, such as teas, but it did not receive an abatement order, according to the state investigations log. The shop owners even pledged to continue selling CBD products.

Calls to City Dock Cafe were not returned. A representative for the Anne Arundel health department said it pursues complaints submitted to the agency and conducts follow-up visits to ensure compliance.

Outside of City Dock Coffee in Annapolis, which advertised the sale of CBD oil. Local health departments are being tasked with investigating companies that are selling CBD-infused products, but only on a complaint basis. This means only some businesses have been penalized while others are continuing to profit off CBD.
Outside of City Dock Coffee in Annapolis, which advertised the sale of CBD oil. Local health departments are being tasked with investigating companies that are selling CBD-infused products, but only on a complaint basis. This means only some businesses have been penalized while others are continuing to profit off CBD. (Ulysses Muoz / Baltimore Sun)

Barnard said she resumed selling CBD products at her coffee shop, but after receiving a second abatement order from Anne Arundel County decided to the heed the warning and closed. Barnard said she thinks she’ll have better luck outside of Anne Arundel County and plans to reopen her business elsewhere, perhaps out of the state.

“I was running a risk of being prosecuted, so I decided to completely back off so I could find another place to run my business to its full potential and scale,” she said. “No one else is being treated this way. I can’t operate my business in fear.”

Some businesses that were asked to stop selling the products acknowledged that they still carry them but asked not to be identified for fear of enforcement.

Only one other business, Embrace CBD Wellness Center in Glen Burnie, has received an abatement order, according to the state records.

Owner Nicholas Patrick said he, too, felt unfairly singled out by the department, but he refused to submit a complaint about other businesses in his area selling infused products when officials encouraged him to do so, according to the documents.

“I have integrity, and it’s just not something I think is worth doing to a person trying to feed their family,” he said in a telephone interview. “And, I believe in the product.”

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