Advertising Law Blog

According to the FTC, each of the three companies advertise that its CBD products “treat or cure serious diseases and health conditions.” One company claims that CBD “works like magic” to relieve “even the most agonizing pain” better than prescription opioid painkillers. Another company claims that CBD is a “miracle pain remedy” for both acute and chronic pain, including pain from cancer treatment and arthritis. Collectively, the companies make claims that CBD is an effective treatment for cancer, Alzheimer’s disease, multiple sclerosis (MS), fibromyalgia, cigarette addiction, colitis, schizophrenia, anxiety, depression, Lou Gehrig’s disease (ALS), stroke, Parkinson’s disease, epilepsy, traumatic brain injuries, diabetes, Crohn’s disease, psoriasis, AIDS, heart disease, asthma, arthritis, and a wide spectrum of autoimmune disorders.

The FTC urged the companies “to review all claims made for their products, including consumer testimonials, to ensure they are supported by competent and reliable scientific evidence” and warned that selling CBD products without the proper substantiation could result in legal action. The FTC gave the companies 15 days to notify it of the “specific actions they have taken to address the agency’s concerns.”

As we have previously discussed, the 2019 Farm Bill amended the Controlled Substances Act so that hemp and CBD products containing trace amounts of THC are no longer classified as Schedule 1 controlled substances. The passage of the Farm Bill led to a surge of consumer products containing CBD to become available in this relatively new marketplace.

The increased availability of such products has prompted the FDA to assert its authority over food and drug products containing CBD. At least for now, the FDA has maintained its position that it is unlawful to introduce into interstate commerce food containing added CBD or THC, or to market CBD or THC products “as, or in, dietary supplements, regardless of whether the substances are hemp-derived.” The FTC has also weighed in on certain CBD products, particularly with regard to those making health-related claims.

Takeaway:  The warning letters are a clear signal to the CBD industry that regulators are serious about addressing unsubstantiated advertising. Particularly, the regulators appear to be honed in on unsubstantiated health claims. Manufacturers and marketers of CBD products should take note of the types of claims the FTC have identified, and revise their marketing materials accordingly.