The developments surrounding the regulation of cannabis products, and the impact of that regulation on the ability of broadcasters and other media companies to run ads for these products, continue on an almost daily basis. Of course, the developments don’t all point in a single direction. As described below, at the same time as the FDA schedules a hearing to look at cannabis products and the rules that should apply to them, the FTC and FDA together have written warning letters to CBD marketers advising them to stay away from making specific health claims about their products and to avoid promoting edible products. What does this mean for media companies that have been approached to advertise these products?
We very recently wrote about the murky state of the law on CBD advertising (mentioning our continuing concerns about marijuana advertising even in states where it has been “legalized”). In that article, we warned that broadcasters should be particularly concerned about selling advertising that markets CBD products to be ingested, or advertising which makes unsupported health claims. In a joint action announced last week, the FTC and the FDA wrote letters to three sellers of CBD products, warning those companies that their marketing raised legal issues. In these letters, the FTC expressed concern that the marketing contained health claims that could not be substantiated, and the FDA was concerned about the marketing of supplements and other CDB products to be taken orally that had not been approved by the FDA as either foods or medicines. At least one of the letters cited a “salve” that presumably was not to be ingested, so the concern there seemed to be solely the specific health claims made for the product. These letters reinforce the concerns that we expressed about advertising that contains specific health claims or which deals with products to be taken by mouth (either as dietary supplements, medicines or in other foods) – so stations should be especially wary of such ads.
In our article we also mentioned that the FDA was expected to hold a hearing soon to look at the issues of regulating CBD and other cannabis products – looking at labeling and purity standards as well as other issues involved in the marketing of such products. A notice was published in the Federal Register this week announcing that the hearing will be held on May 31, and written comments will be accepted through July 2. It will be interesting to watch this proceeding to see the issues that are of concern to the FDA in marketing these cannabis products.
Together, these actions reiterate the ambiguous status of CBD sales. As we detailed in our prior article, while the 2018 Farm Act seems to legalize the production and sale of hemp-based CBD products, that production and sale is only supposed to be done pursuant to federal and state laws that have not yet been approved. Some production is also legal under the 2014 Farm Act, but it is difficult to determine whether what is being sold has really been legally produced. But CBD products seem to be ubiquitous – I even recently received an ad from a well-known national chain of beauty spas from which I had once purchased a gift certificate advertising their new CBD oil treatments. And even big chain drugstores like CVS and Walgreens seem to be getting into the sale of at least some CBDs. Broadcasters and other media companies nonetheless need to move slowly and talk with counsel about ways to minimize risks in accepting advertising for what has become a fast-growing product category for all sorts of businesses.