Promoting and Advocating for the Broadcasters of Nevada, While Serving the Public

Nevada Broadcasters Association

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.

The FDA warning letters cite advertisements on websites, in print, on YouTube and on Facebook all as being problematic. In each case, the FDA gave the companies 15 days to come into compliance by eliminating the problematic claims. In no case were the letters directed to the advertising platforms. Instead all were sent to the companies selling these products.

Nevertheless, as we have warned before (see our posts here and here), there are real issues for FCC licensees of advertising products that are illegal. These FDA actions seem to put much CBD advertising in those categories, except for the most general ads about topical applications. Any health claim and any product meant to be taken internally are real issues with the FDA. State laws, too, must be observed, and many states have yet to legalize the sale of CBD products. So, while the legal means of production and distribution are being regularized through USDA actions (see our post here), many of the uses of CBD remain problematic for advertising platforms. Given this continued ambiguity, we suggest that you talk to counsel about CBD advertising before running it on your stations and other platforms.

Courtesy Broadcast Law Blog