By: David Oxenford, Wilkinson Barker Knauer LLP
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.
This new guidance from the FDA does little to expand on (or contract) some of the concerns that we have already expressed to broadcasters about ads for CBD products – that advice basically being to be cautious. Don’t take ads with specific health claims. Don’t take ads for products to be ingested as CBD has not been approved as a food additive or as a drug by FDA (with the limited exception of the seizure medications mentioned above). Don’t market to children. Don’t take ads if your station is in a state where CBD is still illegal – and don’t take advertisements for uses that are not permitted in states where the use is restricted. And be cautious about the products that you advertise to make sure that they have been legally produced given the fact that another government agency, the US Department of Agriculture, still has not approved wide-scale production (see our post here).
There are plenty of cautions about taking any CBD ads. Some broadcasters figure that there are still too many unknowns and have avoided these ads, while others have proceeded cautiously where they accept ads in states where CBD is legal from reputable advertisers. Be cautious in your approach, and carefully discuss these issues with your attorneys so that they can advise you on specific facts applicable to your own situation.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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