I hope this edition of Paperclips finds you doing well.
Recently a fellow publisher raised a question about CBD oil advertising. I’ve done a bit of research – and this is by no means meant as legal advice…but, proceed with caution if you are planning to accept this advertising. And, make sure you are not violating any laws.
The regulations that cover hemp-derived CBD vary widely depending on location. And, for products to be considered legitimate hemp-based CBD they cannot have the chemical THC in them. (THC is the main psychoactive compound in Cannabis that produces the high sensation). Further, the regulations that are in place address and limit the licensed manufacturers and dispensaries as to how they can market and advertise – they do not regulate the actual advertising business.
Still, there are several steps you can consider taking to safe guard your business:
- Know your state/county/city regulations
- Never offer legal advice to any advertiser
- Consider adding a tagline to the ads that says: “offer void where prohibited.”
- Make sure the CBD product is hemp-derived – not marijuana derived
- Avoid advertising hemp-derived CBD-infused foods, drinks and supplements
- Remember that health benefit claims attributed to a product are closely scrutinized by the FTC. So, it gets tricky if your client is going to run a CBD oil ad that makes health or medical claims.
- Avoid showing consumption in advertising.
And, if the above weren’t enough to think about…consider this as well: If you are a mailed product you run the risk of your paper being refused at the post office if it contains CBD advertising for a product that is not THC free. Keep in mind, THC is not legal federally. (Hemp-based CBD is legal).
At the 2019 AFCP conference publishers were invited to attend a breakfast meeting with the USPS. Following that meeting we received written clarification regarding marijuana and CBD advertising that is sent via the USPS. The response was as follows:
Under Federal Law which the USPS must follow, it is unlawful to advertise (or mail) a Schedule 1 controlled substance – i.e. marijuana and products derived from marijuana excluding hemp products.
If anyone is using the mail to advertise Schedule 1 controlled substances, it is at their own risk.
The Dec. 2018 Farm Bill defined hemp as a substance derived from a cannabis/hemp plant with THC content less than 0.3%. It is always the responsibility of the mailer to be familiar with the federal and state laws where they conduct business.
Advertisements for hemp are mailable as long as they are not prohibited by other laws and advertisers are responsible to ensure their practices are consistent with the law. If there is uncertainty about the legality of an advertisement, it can be referred to the PCSC per Pub 52 section 413:
Where doubt exists about mailability of any article that is considered to be restricted matter, a request for a ruling may be made to the local postmaster (see 215.3). When the qualification of an addressee to receive restricted matter within the conditions in this chapter is in question, a Postmaster may require the mailer or addressee to furnish a written explanation of the addressee’s eligibility and/or the item’s mailability. If the explanation is not satisfactory or when uncertainty remains, the postmaster may forward the explanation along with a statement of the facts to the PCSC for a ruling.
This past week we followed up with our Washington USPS contact regarding the info above. This is his response:
After checking with my internal sources, from a postal perspective, nothing has changed since February regarding advertising CBD. We still follow Federal law and both the DEA and FDA are Federal agencies. It seems to me that you are doing your due diligence by outlining what advertisers/mailers should consider and the risks involved. However, I cannot advise you or your mailers how to proceed other than suggesting that, as you mentioned, a mailing can be referred to the PCSC if there is doubt about advertising content.
I agree that as the CBD/hemp industry continues to grow, there is a potential for advertising growth as well.
So, that’s all I have to share as of today. I hope you find the information helpful. And, if there are questions please send them my way or plan to join an upcoming publishers’ call. The next one is scheduled for 11/11 at 10AM. Call info is as follows:
Lee Borkowski is inviting you to a scheduled Zoom meeting.
Topic: PUBLISHER CALLS
Time: Wednesday, November 11th, 2020 – 10:00 AM
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