Cannabidiol (more commonly known as CBD) products may be new, but federal regulators are still applying a decades-old tenet of consumer protection law to their sale: you must be able to substantiate a product claim before you make it. State attorneys general also apply a similar enforcement standard under their Unfair and Deceptive Acts and Practices (UDAP) laws. Recently, the Federal Trade Commission and Food and Drug Administration jointly issued a stern warning to three companies of the potential legal consequences they face in making unsupported health and efficacy claims in advertising their CBD products.
The Federal Food, Drug, and Cosmetic Act requires a manufacturer of dietary supplements making a nutritional, functional, or general well-being claim to provide “competent and reliable scientific evidence” substantiating that the claim is truthful and not misleading. In most cases, this standard presents a low hurdle that most supplement manufacturers clear with little difficulty. Unfortunately, the ease enjoyed by most dietary supplement producers does not readily translate to those that manufacture CBD products.
Why is that? CBD producers face a lack of scientific studies that shed light on the substance’s efficacy. CBD’s classification as a Schedule I Drug has made it difficult to obtain approval to conduct the required clinical trials and research. Even with last year’s passage of the Farm Bill, which legalized CBD in specific situations, there is still uncertainty as to whether some CBD products on the market are illegal.
As more businesses jump into the CBD market, federal agencies and state attorneys general are likely to be keeping a close eye on the language used to market these products to consumers. Until there is more conclusive data on the effects of CBD and marijuana’s other compounds on the human body, companies should proceed with caution with their use of beneficial health claims.
Retaining experienced counsel to review marketing materials for medical marijuana and CBD products can ensure compliance with national and state regulatory laws.
Mac Murray & Shuster is a nationally recognized firm focused on consumer protection and privacy regulatory compliance and litigation. With a team led by former state regulators, we provide comprehensive counsel to businesses of all sizes in highly regulated industries, including financial services, healthcare, teleservices, automotive, insurance, and consumer marketing.