Advertising CBD products and CBD stores has been an area of confusion for stations. While medical marijuana use has been approved in New York State, this does not necessarily mean stations can automatically advertise CBD products. The same concern applies to advertising for CBD stores. Because broadcasters have a federal license, there is a risk to your station’s license if you broadcast advertisements for products that violate federal law. We have urged you to consult your own counsel as to how to best address this issue.
Initially, we have noted there are risks for broadcasting advertisements for CBD products that contain more than 0.3% THC content. Only CBD oil from industrial hemp containing less than 0.3% THC content was allowed under federal law. Unfortunately, many of the advertisements for CBD stores are not limited to these legal products. The problem is made complex because medical marijuana, including CBD oil, has been legalized in NY. Again, this is not the case under federal law.
A recent decision by the FDA has increased the risks. In a series of decisions the FDA made it clear that many of the representations and statements contained in CBD advertisements may run afoul of FDA rules. Recently, the FDA posted a warning to consumers:
- The FDA has approved only one CBD product, a prescription drug product to treat two rare, severe forms of epilepsy.
- It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.
- The FDA has seen only limited data about CBD safety and these data point to real risks that need to be considered before taking CBD for any reason.
- Some CBD products are being marketed with unproven medical claims and are of unknown quality.
- The FDA will continue to update the public as it learns more about CBD.
The FDA then goes on to list a number of health problems with CBD. The FDA’s Notice can be found HERE.
Importantly, in a number enforcement actions (15) the FDA sent letters concerning advertisements that appeared in newspapers and on social media regarding CBD products. Conerns were raised about CBD advertisements:
- For products to be ingested and making specific health claims
- Claiming it relieved “aches and pains”
- Claiming its “reduced inflammation”
- Aimed at children
Even advertisements for skin conditions with qualifications that the product was still being studied raised concerns. Bottom line, any advertisement making a health claim or promoting a product to be ingested are likely to raise FDA concerns.
Importantly the FDA warnings were sent to the product distributors not to the social media platform. Nonetheless, it is clear that the FDA is significantly restricting the health claims that can be used in CBD advertising. We believe this would apply to advertisements from CBD stores as well as advertisements from the actual products.
Again, this issue is all about risk to the license. Each station is encouraged to consult with your own attorney to determine whether you take such advertising. Each station or station group must decide for itself.
For an instructive memo from noted communications attorney David Oxenford at Wilkinson Barker click HERE.
To see the FDA’s consumer warning regarding CBD products click HERE.
To see an example of the FDA enforcement letter and the types of health claims that raise concerns click HERE.
Click HERE for next story
Click HERE for previous story