What You Can and Can’t Say or Do When Advertising Your CBD Products
The number of CBD products on the market has grown exponentially since early 2019. This is due in large part to hemp – and therefore hemp-derived CBD – becoming permissible on a national level at the tail end of 2018 with the passage of the Farm Bill. Hemp was defined in the bill as cannabis containing less than 0.3% tetrahydrocannabinol or THC.
In most cases, hemp-derived CBD products are still not differentiated from CBD products derived from other varieties of cannabis in terms of advertising–despite now being legal on the federal level. This is slowly changing and will likely continue to shift as advertising rules and regulations catch up with legislation. In the meantime, it is best to err on the side of caution and follow the same guidelines as they relate to all cannabis products.
The two overlapping governmental agencies that set limitations on what you can and can’t say about your products are the Food & Drug Administration (FDA) and the Federal Trade Commission (FTC). In terms of marketing and advertising, the FDA is the primary authority on labeling while the FTC is the authority on advertising. In order to understand what you can do, it is best to apply the process of elimination by first understanding what you can’t do.
Don’t Make (Unfounded) Health Claims
We begin with this topic because it is one of the fastest and most likely ways to attract unwanted attention from regulatory agencies. The safest way to avoid scrutiny by the FTC and FDA is not to make any health claims at all. Certainly, this is unfortunate and positions companies at a disadvantage as much of the allure and appeal of CBD products are the potential health benefits such as treating chronic pain and anxiety.
You may make statements relating to health if it is based on “competent and reliable scientific evidence.” However, if you choose to make such statements you should avoid certain FDA buzzwords such as cure, diagnose, mitigate, prevent, or treat. If you can substantiate a claim, you can make more general statements like “may help lower stress.”
The standard for scientific evidence is stringent. Scientific tests, studies, and other evidence must be conducted by experts in the respective area and objectively reviewed by qualified individuals, using methods accepted in the specific field to confirm the results and findings are reliable and accurate. A company isn’t required to commission their own study but, if they are substantiating a claim based on a study, they need to be confident the study meets this standard.
Don’t Target or Appeal to Minors
Advertising of your CBD product should not be conceived as targeting or appealing to minors. In terms of physical advertisements, this means avoiding areas that can be seen from within 500 feet of schools, playgrounds, or places of worship. Further, the way to avoid the chance of the perception you are appealing to minors is to advertise on platforms, outlets, and publications where 70% or more of the audience demographic is over the age 21. You also need to avoid the use of cartoons and other figures and representations that are likely to draw minors’ attention.
The largest digital advertising outlets such as Google, Facebook, Twitter, Twitch, and Amazon have their own restrictions regarding CBD and other cannabis-related products. These restrictions evolve much quicker than federal organization guidelines and should be researched thoroughly to determine if your product can be advertised and, if so, how it needs to be advertised to be in compliance.
Don’t Show Consumption
If your product involves consumption, such as CBD meant to be vaporized and CBD-infused foods and beverages, you may not display consumption in your advertisements. Advertising CBD-infused foods and beverages in any manner are becoming increasingly troublesome. The FDA has recently started cracking down on these types of products. After remaining silent for quite some time on the use of CBD in foods and beverages, they began issuing warnings to companies in November 2019 and cautioned the public that CBD is not generally recognized as safe (GRAS) for human consumption. The FDA is currently working on creating a specific regulatory framework for the sale and marketing of CBD products that fall under their purview.
Keep in mind that the federal regulations around CBD are constantly evolving and regulations also vary by state. While some states provide no guidance or formal rules at all, others are even more restrictive than the federal guidelines reviewed above.
In lieu of clear, published guidelines, staying up-to-date on lawsuits around CBD advertising is a must. In time, the rules will likely become clearer but, in the meantime, lawmakers are likely to defer to precedents set by legal cases. When in doubt, one of the best courses is to look up the regulations for alcohol advertising. In many instances, in areas where there is no clear guidance or precedents, lawmakers will align with the rules and restrictions around adult beverages which are well-established.
This is intended to be informational only and should not be considered legal advice. You should consult legal counsel familiar with the most current state and federal labeling and advertising requirements for CBD and other cannabis-related products.
- Annual Conference | June 15th – 18th, 2022