Earlier this week we received a terrific question about whether a station could legally advertise CBD products. The short answer is that since Kentucky allows CBD sales, stations can run ads for legal CBD products with some caveats. Please carefully digest our advice below:
Congress specifically approved CBD for legalization by the states in 2018, so it is not in the same category as marijuana. Marijuana is still a felony under federal law to market in the US (as is using broadcast stations or the internet to promote its sale).
While CDB is legal under federal law, there are some caveats from the FDA. You cannot make health claims for the CDB products. You should not advertise in programming where there is a significant audience that is under the legal age for its use. The FDA has also not approved its use in any food or beverages, so advertising anything ingestible is potentially a problem under FDA rules.
The FDA had promised, after CBD was legalized by Congress, to come up with rules about its legal use in the US, including addressing some of these marketing restrictions. But, after studying the matter for over 4 years, last year, the FDA determined that they could not adopt any such rules because they did not think that there was scientific consensus on how these products should be used for medical purposes or in food or beverages. Thus, they suggested that Congress develop rules addressing those issues. That has not happened.
We would add that all ads are also subject to the Federal Trade Commission’s regulations, so we recommend the following guidelines:
- No deceptive advertising. An advertisement is deceptive if it contains, “a misrepresentation or omission that is likely to mislead consumers acting reasonably under the circumstances to their detriment.”
- All “objective” claims require substantiation. “The level of substantiation required depends on a number of factors, including the type of claim being made.” This means if a CBD company makes a claim that their product can prevent, treat, or cure a disease there requires competent and reliable scientific evidence to substantiate these claims.
- Do not guarantee results.
- Do not link to articles that contain dubious medical claims related to CBD on your website or in the advertisements.
As for Kentucky, specifically, there are emergency administrative regulations in place regarding the manufacture, packaging, and distribution of CBD, but these do not address any advertising guidelines. Final regulations are set to be issued for notice and comment this month.
Beyond that, the rules are unclear and stations are urged to seek counsel from their own attorneys as to the risk of advertising these products.
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