by Griffin Thorne, Attorney at Harris Bricken

Marketing CBD products is a challenge. For years we’ve written about risks associated with making health-related claims in marketing. But there’s another avenue that the federal government doesn’t like: unsubstantiated claims. Last week, the Federal Trade Commission (FTC) decided to ratchet up enforcement and sent out warning letters to nearly 700 companies (some of which offer CBD products) concerning their alleged unsubstantiated claims.

FTC’s template warning letter, styled “Notices of Penalty Offenses,” is here. The letter notes that it includes the FTC’s Notice of Penalty Offenses Concerning Substantiation of Product Claims (or “Substantiation Notice“) and Notice of Penalty Offenses Concerning Deceptive or Unfair Conduct around Endorsements and Testimonials (or “Endorsement Notice“). It also notes that receipt of a notice of penalty offenses can lead to civil penalties of up to $50,120 per violation. Under federal law, in some cases each day of continuing activity could be construed as a separate violation.

The FTC’s various notices address a host of potential issues, which we may dig into in detail in subsequent posts. For today, there are two general buckets of concerns: unsubstantiated claims and issues around endorsements (I’ve written about FTC endorsement issues on a few occasions, see here for example). The FTC’s letter notes that it “does not reflect any assessment as to whether you have engaged in deceptive or unfair conduct. We are distributing similar letters to numerous other companies.” However, what it means is that the agency is taking a hard look at companies in a variety of industries – not only CBD, but also “companies involved in the marketing of OTC drugs, homeopathic products, dietary supplements, or functional foods”.

Notably, the FTC has guidance for health products compliance, but this can be a touchy subject since the FDA categorically takes the position that CBD products can’t be treated or marketed like regular healthcare products. So CBD companies on the receiving end of this letter – or who receive similar letters in the future – may have a difficult time sifting through the FTC’s myriad different policies.

While the FTC’s letter notes that it is not an assessment of engaging in wrongful conduct, this signals to us that the agency is ramping up towards enforcement. As mentioned, we will probably dive further into these topics in future blog posts, but wanted to get a short summary out now.

Re-published with the permission of Harris Bricken and The Canna Law Blog