The regulator says one inspector’s order to remove the hemp-derived products from stores was misguided and merchants should have been told to review federal law and seek legal counsel if they had questions.
Last month, a state inspector gave Gary Runnells the bad news: She would certify his newly renovated commercial kitchen, but federal laws would not allow him to use it to make foods infused with hemp oil or sell them in his Newport health food store.
Maine wanted food made with hemp-derived cannabidiol, or CBD, off the shelves, she said.
But now a state Department of Agriculture, Conservation and Forestry official is apologizing for the overreach by one of her nine inspectors, whose removal order sent chills through the state’s hemp industry and caused confusion, shutdowns and layoffs.
“I have one inspector that did tell people they had to take product off their shelves. For that I apologize,” said Celeste Poulin, director of the department’s quality assurance and regulation division. “Our inspectors were asked to review with people what the federal law was. And if (merchants) had questions, they were advised to seek legal counsel.
“This was not handled as well as it should have been, and I apologize for that.”
Despite Poulin’s apology, state officials from the Department of Agriculture, Conservation and Forestry to the Department of Health and Human Services to the Attorney General’s Office maintain that cannabidiol-infused foods and food products cannot be legally sold to the general public.
State lawmakers led by Rep. Craig Hickman, an organic farmer from Winthrop, are trying to come up with a legislative fix. His bill would let Maine diverge from FDA rules and treat local hemp like raw milk, available for sale only in Maine. The bill is up for a vote next week.
‘THREAT TO OUR SURVIVAL’
At a legislative hearing this week, farmers, processors, wholesalers and retailers lined up to talk about the impact of not being able to grow and sell hemp-derived CBD. Ashleigh Lenz, the co-owner of Healing Harbors, moved to Maine just to make hemp products.
“We were told Maine would always be welcoming to hemp and the economic boom it could bring to this state,” Lenz said. “We thought the passage of the (federal) Farm Bill would put an end to our troubles, but now we have seen the biggest threat to our survival emerge.”
The state crackdown has forced Wayne Wertz, a former state representative from Auburn, to halt plans to start selling the CBD products that have helped his mother. He has $40,000 invested in the business, but can’t open. He is sitting on $10,000 worth of useless inventory.
“We have got to fix this and fix it today,” Wertz said.
But one state agriculture official says the hemp industry should have seen this coming: Since the Maine hemp farming program began in 2016 he has been telling farmers he licenses that selling into a CBD market broke state and federal laws.
“Manufacturers, processors and growers need to be seen as responsible for this mess,” state horticulturist Gary Fish said. “They chose to sell illegal products before all the rules could be determined. I have been warning growers right from the start.”
Maine consumer protection and health inspectors must enforce both state and federal food laws, which includes ensuring products for general sale are labeled, list all ingredients, and that no ingredient is prohibited by state or federal law, including CBD, Poulin said.
The U.S. may have legalized hemp, but federal authorities stood firm on CBD foods.
A month after the U.S. Farm Bill passed, the U.S. Food and Drug Administration announced that CBD remains off limits in food, Poulin said. It now considers CBD, the main ingredient in the new anti-seizure drug Epidiolex, to be a medicine, and medicine can’t be added to food.
But whether Maine regulators will enforce the federal CBD ban is unclear.
State agriculture inspectors are reviewing the federal policy with grocers, health food shop owners and commercial kitchens, if asked, but they aren’t taking points off if they find CBD foods on the shelves during annual inspections or seizing any product.
When questioned by staff, a state inspector conducting an annual retail food inspection at Morning Glory in Brunswick, a natural foods store that carries Healing Harbors CBD lotions and oils, handed out a CBD policy memo issued by the Attorney General’s Office.
The store passed its inspection with flying colors, said manager Toby Tarpinian.
“It’s confusing, what’s allowed and what’s not,” Tarpinian said. “We asked a lot of questions. She pointed to some of our CBD dog treats, so we removed them. She didn’t say we had to, but we want to follow the law. She didn’t say anything about our CBD teas or kombucha.”
The agency said it will not send out warning letters until CBD’s status in Maine is resolved.
State health inspectors that operate within the Department of Health and Human Services, which licenses eateries where food is consumed on site such as coffee shops and restaurants, have delivered nine CBD warning letters so far, but have not yet fined anyone.
In the letter, the manager of Maine’s health inspection program said her department’s prior statements about allowing CBD products to be sold in establishments that it licensed were incorrect and immediately rescinded upon delivery of the letter.
The letter was distributed to any licensee asking about the status of CBD during inspection and anyone observed adding CBD oils to food or beverage products during inspection, department spokesman Emily Spencer said.
If someone is found selling CBD food products, an inspector would give them the letter and note the finding on the inspection report, as well as the corrective action required. Removal would have to occur within 10 days. The penalty for continued sales would be $100.
National industry analysts estimate the U.S. CBD market hit $591 million in 2018, and, with new federal legislation making it distinct from marijuana, its cannabis cousin, it could hit $22 billion by 2022, according to the Brightfield Group.
According to its hemp study, most consumers who buy CBD products say they are doing so with hopes that it can relieve insomnia, anxiety, depression and pain. But the FDA has told producers they can’t make any health claims about CBD without clinical proof.