Do’s and Don’ts: Q&As for CBD with the FDA

The FDA doesn’t mess around–and neither should you honestly. When it comes to selling CBD you should know exactly what you are (and aren’t) doing, to keep yourself out of risk’s way.

Structure-Function

Before anything else–I would personally like to introduce you to the “Structure Function Claim.”

This is the ONLY claim you should feel safe using when advertising anything regulated by the FDA. In technical terms, “Structure/function claims may describe the role of a nutrient or dietary ingredient intended to affect the normal structure or function of the human body. In addition, they may characterize the means by which a nutrient or dietary ingredient acts to maintain such structure or function.” ~ The U.S. Food and Drug Administration.

In much simpler terms–your product is intended to keep ALREADY happy people happy, or continue to maintain the health of people that are ALREADY healthy. 

You can demonstrate your product through “feelings” such as, “I feel more relaxed,” or “I feel young again,” or “I feel on top of the world.” The FDA assumes that if you tell someone, “This product reduces anxiety,” you’re insinuating that they’re medically anxious and that you’re prescribing something that can fix that need state.

You can’t. Only a doctor can do that.

This is the cardinal rule of the FDA is its disclaimer, “These statements have not been evaluated by the Food and Drug Administration. These products are not intended to diagnose, treat, cure or prevent any disease.” 

What Can’t You Say In CBD Advertising?

Drug Stuff

Safely assume, anything outside of the Structure/Function claim is going to get brought to the attention of the FDA.

Just avoid medical or health claims in general. Don’t tell people it’s a drug, or a miracle supplement (we promise you, if it was a miracle supplement, the government would have privatized and then subsidized it long ago). The FDA can, and will, remove your campaign, or any contingent marketing materials, sue you, and then go to work on you (not unlike most of Ocean’s 11).

Former FDA Commissioner Scott Gottlieb, M.D. remarked, “…deceptive marketing of unproven treatments raises significant public health concerns, as it may keep some patients from accessing appropriate, recognized therapies to treat serious and even fatal diseases.”

People take their health very seriously. So the FDA–and so should you.

Anecdotes 

Anecdotal evidence is the story of one person. Simply because it happened to someone, doesn’t mean that it’ll happen to everyone, or even that it’s the intended outcome in the first place.

Untested assumptions should not, and cannot, advise (in legal or common tongue) customers about treating specific medical conditions, disease, or ailment with CBD. If that were to happen at all, again, only a doctor can do that.

It’s also worth noting that the FTC (Federal Trade Commission) also tracks claims for their repute. Not only will they report you to the FDA if you’re not compliant, but they’ll also take legal action if you can’t substantiate your claims with studies, reputable sources, or cited tests and cases.

Anything that cannot be proven, cannot be used. That’s as simple a marketing mantra as possible. Many multi-million dollar companies attempt to push the limits on what they can say, and how they say it–and many multi-million dollar companies are taken to court by both the FDA and FTC every month.

This isn’t concrete either, deceptive advertising (in the eyes of the FTC) can be anything that, “contains a misrepresentation or omission that is likely to mislead consumers acting reasonably, under the circumstances, to their detriment.”

Again, stick to how products make you feel, and not “what they do and how they do it” and you’ll be largely safe for the most part.

Things That The FDA Says You Can’t Say

They have a list. Click here to read in detail what they say.

The summed version is that the FDA currently doesn’t believe that CBD is a drug or dietary supplement. As such, it falls under the category of a “CBD” product and is unlawful to add to food, dietary supplements, and pet foods.

Simply put, advertise your CBD product as a CBD product and simply be transparent. Also understand that the FDA is only in charge of laws and regulations at a federal level. Wherever you sell your CBD products from, make sure that you’re following all the rules, both set by the federal and state governments.

What Can I Say In My CBD Marketing Strategy?

The don’t section is always scarier than the do section–and we mostly just want to make sure you skip out on the headache that is the FDA when you’re not compliant. No amount of sales and business growth is worth the time and litigation of the FDA.

That being said, to answer the question above–there’s really no definitive answer. (whomp, whomp)

How Do I Advertise My CBD?

There are risk tolerant companies out there that mitigate risk with legal counsel, but not every startup and entrepreneur is so lucky. If you’re looking to be risk savvy and minimize, here are your Do’s and Don’ts:

  • DO NOT mention specific diseases or illnesses (anywhere at any time ever).
  • DO NOT include the FDA’s drug “buzzwords” – diagnose, cure, mitigate, treat, or prevent – on labels or in advertisements. 

E.g. Stating a CBD product “may cure depression“. Stating a CBD product “helps to reduce everyday stresses,” (if properly substantiated) may be permissible.

  • DO NOT guarantee results. Say CBD “may, blah blah blach” rather than “does x, y and z.” The FDA looks at “superlatives,” absolute claims. It might not be as “punchy,” but it mostly keeps you out of firing range for false-advertising liability, and overall FDA liability risk.
  • DO NOT provide links to articles containing dubious medical claims related to CBD on your website or in advertisements. You’re welcome to invite them to visit the site in general, you just can’t tell them what to research or find. Point them in the right direction, don’t do the work for them. 
  • DO have your product tested to ensure it contains the exact amount of CBD listed on the label and in advertisements.
  • DO ensure all claims made are sufficiently substantiated. Importantly, document the substantiation for each claim you make, and retain those records. You can use them on your website to make convincing selling points, but you’ll definitely need them if you’re audited by the FDA.
  • DO stay up to date on new research related to CBD. This is your business now–on top of making sure you are the leader of your competition, you simply need to stay up to date on your product. Also, the science and laws are changing–omitting material information in an advertisement can make it deceptive. If new research contradicts your claims, modify your claims to account for it.
  • DO stay up to date on regulatory enforcement actions, regulatory guidance, and lawsuits related to CBD labeling and advertising. Take a look at the FDA’s Warning Letters, know who they’re going to, and why. The FTC also issues warning letters–stay up to date on them and don’t make the same mistake.
  • DO ensure your labeling and advertising complies with the laws of the states in which your products are marketed and sold. Some states have enacted laws that are more restrictive than the federal laws discussed above.
  • DO buy insurance coverage. Again, CBD marketing occurs in a legal grey zone – the most scrupulous companies are still at risk of enforcement actions and lawsuits (including class actions).

We listed each social media platform’s ad stance on CBD here. Understand that each platform’s stance regarding CBD advertising is different. Be extremely cautious when creating ads, and know exactly where each one is going.

CBD Advertising Laws  (2021)

  • Facebook 

Ads for ingestible topical CBD and hemp are OK–but the ads should not feature the products. If your focus is on hemp-derived product (not explicitly saying CBD), then you’re okay. Click here for more info. 

  • Instagram 

They don’t allow advertising CBD in any form or format. However, you can leverage influencer marketing on the platform to spread word about your CBD Products. 

  • TikTok 

Their Community Standards prohibit advertisements for CBD products and paraphernalia.

Q&A

Q: Can I Advertise CBD on Facebook?

  1. Most social media sites (Snapchat, Instagram, Google, and TikTok) prohibit to some extent CBD advertising. Facebook has recently relaxed their guidelines regarding CBD advertising. Again, make sure to read into all available policies.

On Facebook’s platform, you can run ads for topical hemp and ingestible hemp, provided these products are not explicitly featured in the ads.

For other platforms, you have to rely on other marketing tactics like SEO and influencer marketing to create awareness about your products.

Q: Can You Sell CBD On Google?

  1. Google Ad-roll will search specifically for the places your ads are legal. Using their subscription can save you a lot of time, headache, and frustration. That being said–Google is a search engine, and not a platform. And their web store only sells Google products.

Google can be an excellent resource to bring traffic into your website, but no you can’t sell your products “on Google.”

Start your own CBD company now with Salt Leaf Hemp.

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