We have written several articles (see our articles here and here) about the regulation of CBD and the risks inherent in the broadcast of advertisements for these products.  CBD is in a legal limbo, as the Farm Act of 2018 took hemp products with less than .3% THC off the list of prohibited drugs on Schedule I of the Controlled Substances Act, but the production of these products is still subject to rules that have not yet been written by the USDA.  Moreover, CBD products that are marketed as drugs or which are contained in food are regulated by the FDA and their advertising is regulated by the FTC (see our article here).  The FDA last week published a long article on its website setting out the state of its regulation of CBD, noting that it was still studying the health effects of these products, as well as issues relating to the sale and marketing of CBD.  The FDA is taking comments on CBD issues through July 16 (see the notice here extending the comment deadline which was originally July 2), and urges interested parties to file comments on the issues raised in its proceeding.

While CBD products seem to be everywhere, in the last week, perhaps influenced by last week’s FDA article, there were two articles of note in DC publications noting the legal ambiguity of CBD products (see the Washington Post article here and the Morning Consult article dealing with online advertising issues here).  These are the same issues that we have been highlighting for broadcasters over the last few months.  These products are ubiquitous, but their use may not be legal in many states, and the promotion of certain uses (particularly anything that is ingested or any use claiming specific health benefits) is clearly a concern to federal authorities.  So, when approached by potential marketers of CBD products, broadcasters need to carefully discuss with their legal advisors the specific advertisement and its ramifications and a make a decision whether the revenue from the ad is worth the risk of its airing in light of these regulatory uncertainties.  Hopefully, the FDA and other government agencies will move quickly to resolve this legal limbo in which these products now exist.