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.
This month’s decrees are not the first federal government actions to target the marketing of CBD products. We have written before (see, for instance, our articles here and here) about actions by both the FTC and the FDA that target companies selling CBD products, not only for the types of deceptive health claims involved in these cases, but also in connection with any CBD product that is marketed for ingestion as a food additive or dietary supplement. As we noted, hemp-based CBD is no longer a Schedule I drug that is banned by federal law for all uses in the US (contrast this with marijuana, which we have suggested that media companies not advertise at all given its continued illegality under federal law). Instead, CBD can now be legally produced and distributed in many states that have implemented regulatory controls required by the 2014 and 2018 Farm Acts. But companies looking to advertise these products need to observe the restrictions on health claims that these recent decisions found problematic, as well as the restrictions on ingestible products cited in past regulatory actions, and any other restrictions imposed by law and regulation – including state laws that may limit the distribution and marketing of these products. Given the uncertainties that surround CBD advertising, stations should consult with counsel before accepting such ads.
Courtesy Broadcast Law Blog