By Hilary Bricken, Principal at Harris Bricken
Cannabis advertising has always been a precarious art. From first amendment commercial speech issues to zealous state marketing and promotion regulations to false claim lawsuits, cannabis advertising can go down some dark rabbit holes. Notoriously, tech giants like Instagram and Facebook would take down cannabis-related ad content for violating site terms and conditions around the promotion of illegal substances and recreational drugs. Google was also on this list, and we all know how critical Google is for online advertising. However, Google recently has decided to relax its advertising policies– at least around hemp and hemp CBD products. But not all cannabis advertising is created equal on Google. You still won’t be able to open advertise your cannabis-related services without the risk of getting shut down.
Last month, Google announced that it’s updating its cannabis advertising rules. On January 20, 2023, the Dangerous Products and Services and Healthcare and Medicines Google Ads policies will allow for the promotion of “FDA-approved pharmaceuticals containing cannabidiol (CBD) and topical, hemp-derived CBD products with THC content of 0.3% or less in California, Colorado, and Puerto Rico”. Additionally, CBD will be removed from Google’s Unapproved Pharmaceuticals and Supplements List.
Google states that in the U.S., only topical CBD products that have been certified by LegitScript can be promoted on Google. LegitScript is an “internet and payments compliance company that provides services for merchant monitoring, platform monitoring, and certification in high-risk industries”. Certification requires that all advertisers must : (1) provide samples of their CBD product to test for compliance with legal THC limits (see below); and (2) provide LegitScript a third-party Certificate of Analysis. FDA-approved CBD pharma products won’t be certified by LegitScript. Applicants will all pay a fee to LegitScript to complete the process. Google will then certify all of the applicants that make it past LegitScript. Sounds pretty easy to engage in cannabis advertising on Google now, right? Think again.
LegitScript has already released its CBD certification standards for cannabis advertising, and they are comprehensive. See here. Advertisers will, among many other things, need to:
Obviously, Google is minding its Ps and Qs regarding compliance with the FDA’s current position on CBD. It does not want to be caught assisting in violations of the Food, Drug & Cosmetic Act and it doesn’t want to inadvertently assist anyone trafficking in cannabis containing more than .3% THC. In turn, all ads promoting other CBD-based products, including supplements, food additives, and inhalants, won’t be allowed. And any product containing more than .3% THC (i.e., cannabis) certainly won’t be allowed on Google unless we see a change in federal law (despite state law to the contrary).
In sum, while Google is opening the door on some cannabis advertising for FDA-approved CBD and CBD topicals, it’s going to be a relatively heavy lift to get through LegitScript’s vetting process. Still, it’s progress.
Re-published with the permission of Harris Bricken and The Canna Law Blog
Hilary Bricken is a partner with the law firm Husch Blackwell, where she advises clients in the cannabis, healthcare, and life sciences spaces on transactions, regulatory compliance, governance matters, and other corporate needs. Hilary may be reached at [email protected].
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