Be Careful of Health Claims for CBD and THC Products
By Lauren Mendelsohn
May 14, 2021
The recent settlement of a prominent cannabis company for making health-related claims about CBD products should serve as a reminder to cannabis and non-cannabis companies alike that the United States Food and Drug Administration (FDA) has not approved CBD or THC as a drug or dietary supplement, and marketing products containing them as such violates the federal Food, Drug & Cosmetic Act (the “FDC Act”). We previously wrote about FDA regulation of hemp- and cannabis-derived products here, here, here, and here.
In addition to avoiding health claims about CBD and THC products, companies should avoid selling food products that contain either compound in interstate commerce, as the FDA hasn’t approved either CBD or THC as a food additive. In California, CDPH has taken this position as well, though cannabis edibles sold at licensed dispensaries are exempt because edibles are explicitly defined as not being “food” under state law.
Over the past few years, FDA has sent out numerous warning letters to sellers of CBD and hemp-derived products for violations of the FDC Act. In addition, the Federal Trade Commission (FDC) has ordered several companies to pay monetary penalties for their deceptive marketing of CBD products.
There is legislation pending in both Sacramento and Washington, D.C. that would loosen restrictions in this area. At the state level, Assembly Bill 45 would create a pathway to legally produce dietary supplements and food products containing hemp-derived ingredients. At the federal level, the Hemp Access and Consumer Safety Act would achieve a similar goal.
In the meantime, companies selling products containing CBD or THC should familiarize themselves with the FDA’s guidelines for cannabis-derived products, and consult with experienced counsel to avoid running afoul of applicable laws, regulations, and ordinances. Furthermore, given the dynamic nature of this topic, such companies ought to be closely monitoring federal and state developments such as the ones mentioned above.
This information has been provided as a public educational service and is not intended as legal advice. For specific questions about hemp, cannabis, or products containing CBD or THC, contact the Law Offices of Omar Figueroa at 707-829-0215 or info@omarfigueroa.com to schedule a confidential legal consultation.