CBD has been a hot topic for media companies – trying to decipher what products are legal and which can be advertised. We have written a number of articles on CBD, hemp and other cannabis advertising issues (see, for instance, our articles here, here, and here). 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. As we wrote here, 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.
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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. 
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Last year, Congress considered limits on direct to consumer (DTC) prescription drug advertising (about which we wrote here), but this effort stalled.  A recent letter from two Congressional leaders of the Energy and Commerce Committee suggest that Congress is looking at these issues once again.  This advertising has become important to television networks, and to drug