A Warning On CBD Promotional Copy

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CBD has been a hot topic for media companies – trying to decipher what products are legal and which can be advertised.


Wilkinson Barker Knauer partner David Oxenford offers new insight on the clarity of legalities tied to CBD, hemp and other cannabis advertising.


By David Oxenford

CBD has been a hot topic for media companies – trying to decipher what products are legal and which can be advertised. I’ve written a number of articles on CBD, hemp and other cannabis advertising issues. Each of these articles highlights the confusion about the current state of the law on CBD, not just in the media, but across all industries.

Some recent government correspondence indicates that clarity on the legality of CBD production may be coming soon, but that any resolution about the health claims that can be made about CBD products and their use in food and drugs may still be years away. These letters also show that the advertising community risks government concern if advertising does not recognize the continuing regulatory concerns about CBD health claims and its use in food and drugs.

The correspondence that most directly addresses marketing issues is this Warning Letter from the FDA to a CBD distributor in which the FDA warned the distributor about health claims made about its products in the promotional materials that it was distributing online. Many seemingly generic claims about the benefits of CBD were singled out as a source of concern, along with many claims that were more specific citations to studies suggesting that CBD was helpful in treating defined ailments. From the tone of the FDA letter, claims about third-party findings on specific health benefits should not be included in promotional materials. Nor should the more generic claims like these cited in the letter as being problematic:

  • “CBD oil is becoming a popular, all-natural source of relief used to address the symptoms of many common conditions, such as chronic pain, anxiety . . . [and] ADHD.”
  • “The Benefits of CBD Oil for ADHD . . . It’s not unusual for people with ADHD to feel anxious and on the edge. CBD is known for its anti-anxiety properties that can promote relaxation and stress relief. It can also help to restore focus and ability to concentrate on specific tasks, as well as reduce impulsivity.”
  • “CBD can successfully reduce anxiety symptoms, both alone and in conjunction with other treatments.”
  • “CBD oil can be used in a variety of ways to help with chronic anxiety.”
  • “Some of the most common reasons to use CBD oil include . . . Chronic pain . . . Mental conditions like anxiety, depression, and PTSD . . ..”
  • “CBD . . . can be used to help manage a wide range of health conditions, such as . . . Anxiety and depression . . . Chronic or arthritic pain . . ..”
  • “Some of the most common reasons to use CBD oil include . . . Chronic pain . . . Mental conditions like anxiety, depression, and PTSD . . ..”

Another issue that arises in advertising CBD and other hemp products is whether any of these products are being legally produced. An interpretative opinion from the USDA sets out under what circumstances the production of CBD products is currently legal in the US. This opinion sets out that the only legal hemp products being produced at this point are the limited products being produced for research purposes under the 2014 Farm Bill.

The government has previously stated that it did not seem to think that commercial production was authorized under the 2014 Bill, yet some growers operating under these pilot plans seem to be relatively big businesses. Otherwise, hemp products including CBD can only be grown pursuant to provisions of the 2018 Farm Act with a USDA license or one issued by a state or tribal nation under a plan approved by the USDA – and the USDA has not yet approved any such plans nor even adopted the framework under which they will evaluate such plans.

According to the USDA website, the USDA intends to have regulations in effect by Fall 2019 to accommodate the 2020 planting season. If a state or tribal nation submits a plan before that time, USDA will not review or approve the plan until the regulations are implemented. Thus, there appears to be a very limited universe of hemp products that are currently legally produced and thus can be used for making hemp-derived CBD.

letter from Sen. Ron Wyden of Oregon to the FDA and the USDA suggests an even shorter timeline for those USDA regulations – he indicates that USDA plans to act in August 2019. But, as indicated in the Wyden letter, action by the FDA to set out regulations for the use of CBD in food and drugs, and about the health claims that can be made for such products, appears to be much further away – perhaps 3 or 4 years away according to FDA statements cited in the Wyden letter. Wyden urges the FDA to act more quickly – a sentiment that many others involved in any way in the hemp industry no doubt echo.

So where does this leave media companies looking to accept advertising for CBD and other hemp products? Basically, as we have said before, proceed with caution.

The USDA letter makes clear that “hemp has been removed from schedule I of the Controlled Substances Act and is no longer a controlled substance,” but then details that its legal production is currently very limited. So media companies want to look at whether they are advertising a legally-produced product, and need to be wary of the content of any ads to avoid the issues set out in the FDA warning letter.

Clearly, it is a muddle, and until further clarification is released, broadcasters and other media companies need to proceed with caution and get counsel from their own attorneys as to what they can and cannot do.

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