FDA CBD advertising rules

In recent weeks, we saw press reports on a recommendation from the Attorney General to loosen federal restrictions on marijuana – reclassifying it by moving it off Schedule I (an illegal controlled substance with no medical uses and a high degree of potential abuse) to Schedule III, where many other drugs, including some requiring a prescription, are listed.  No official announcement about any reclassification action has been released, and even when it is, there are apparently other administrative steps that need to occur before any re-scheduling is final.  So, there are many regulatory hurdles still to come.

While a rescheduling to Schedule III may have an impact on research and marijuana’s medical uses, broadcasters need to continue to take a very cautious approach to marijuana advertising while the details of any possible change are worked out and likely even after any re-scheduling as, even as a Schedule III drug, advertising may still be restricted under federal law.Continue Reading Don’t Start Counting Marijuana Advertising Dollars Yet – Cautions Despite Possible Changes in Its Federal Classification

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC issued a Public Notice extending the deadlines for all filings in the FCC’s LMS or online public file

Just before Christmas, the Federal Trade Commission issued consent decrees with six companies resolving proceedings alleging that their marketing of CBD products was deceptive.  The consent decrees included monetary penalties as high as $80,000 and compliance plans to ensure that the named companies would not engage in future marketing of unproven health benefits of CBD products.  The FTC issued a press release on the consent decrees (links to the decrees and related documents can be found on the same webpage as the press release).

Some of the health claims that the FTC found problematic were very specific, suggesting that CBD could aid in the treatment of specific diseases and medical conditions.  Other claims found to be improper included more general claims that CBD was effective for “pain relief” and that the products are safe for all users.  As noted in the FTC documents, only proven health claims for CBD can be included in marketing material – and so far, the proven health benefits have been limited to those provided by specific FDA-approved anti-seizure medications.  While these decrees were with companies selling CBD products, rather than media companies that ran their ads, as we have noted before, broadcasters and other media companies should be alert to advertising messages that exceed permissible guidelines.  While the FDA has promised further guidance on the sale and marketing of CBD products, action has likely been stalled by the agency’s concentration on pandemic-related issues. 
Continue Reading More FTC Consent Decrees Emphasize Prohibitions on Advertising of Unproven Health Benefits of CBD Products

The FDA last week issued an update on its review of issues related to the sale and marketing of CBD products.  The guidance reiterates the kinds of warnings that we have given before (see, for instance, our articles here and here) about not advertising specific health benefits of CBD products as, except for two approved CBD-based drugs used to control seizure-related disorders, the FDA has not yet approved other medical uses of CBD products.  The FDA release provides numerous general cautions about the use of CBD products including concerns about their interactions with other drugs and the potential side-effects of their use.

The statement includes only two paragraphs devoted to marketing of CBD products.  In these paragraphs, the FDA discusses the enforcement actions it has taken (see our posts here and here) against companies that provide specific guidance on health benefits of CBD not only because of the fears of side-effects, but also because of the potential for consumers to be led to believe that CBD products should be used to treat medical conditions to the exclusion of other proven therapies.  The warnings about marketing also extended to the concerns about product labeling, including worries about products being claimed to contain CBD that do not or containing other unknown substances not listed on any label.
Continue Reading The FDA Issues New Guidance on CBD – Still Leaving Many Questions for Broadcasters and Advertisers

We have written many times about the concerns regarding the marketing of CBD products on broadcast stations. As we wrote here, here, and here, the FDA and FTC have repeatedly warned makers of these products that they cannot make specific health claims about the products and cannot market products that are intended to be ingested. In a recent action, the FDA issued 15 warning letters to companies marketing CBD products – warning them about marketing both for edible products and for health claims (see the FDA press release here with links to all 15 warning letters). The FDA also released a Consumer Update warning consumers about many of the potential risks of CBD use and noting that, except for a single epilepsy drug, it has not approved any medical uses of these products.

These warning letters include a litany of advertising issues that the FDA found problematic, beyond the simple issues of advertising products to be ingested and making specific health claims. In several letters (including those here, here and here), the FDA suggested that even claims about CBD being good to relieve “aches and pains” or that it “reduces inflammation” exceeded the legal limits on marketing. Even claims that oils used for “skin conditions, spot pain management and sore joints,” qualified with the fact that the uses were “still being studied,” were noted as being concerns. Advertising about products aimed at children was noted as being particularly problematic as use by “vulnerable populations” is a real concern where no FDA-recognized research has established the safety of those products. Animal products were also recognized as a concern, as they also have not been approved as being safe and effective.
Continue Reading Many More Warning Letters Sent by FDA to CBD Companies – More Issues for Advertisers

On October 31, the US Department of Agriculture published in the Federal Register interim rules governing the production of industrial hemp under the provisions of the 2018 Farm Act (see the USDA press release here).  These rules will allow the USDA to approve state and tribal plans for the regulation of hemp production.  It also allows for the USDA to authorize growers in states that have not adopted their own plans (or that have restricted the production of hemp).  The USDA notes the interest in hemp production driven by interest in CBD products derived from hemp.  While these rules do not address advertising issues specifically, they do ease some of the concerns that many broadcasters and other media companies have had about advertising CBD products when it was unclear that the production of those products was legal.  We wrote about some of those concerns many times, including in our posts here and here.

These interim rules recognize that CBD products can already be legally produced under provisions of the 2014 Farm Act.  As we noted here, that Act authorized experimental production of hemp products.  The 2014 Act also permitted research into commercial exploitation of hemp products – probably permitting greater production than Congress or the USDA expected when the Act was adopted.  The October 31 public notice states that production under the 2014 Act will be allowed to continue for the next three years until permanent rules implementing the 2018 Act are adopted.  In fact, the USDA notes that it expects that over 50% of hemp production will be by those operating under these grandfathered 2014 licenses for the next year.  This seems to recognize that a significant amount of production already underway is in fact legal under federal law, ameliorating some of the concerns as to whether CBD products now being sold could have been legally produced. 
Continue Reading USDA Issues Interim Rules for Hemp Production – How Does it Affect CBD Advertising?