Mar 26

Marketing Hemp and CBD without FDA Interference

If you are marketing MMJ’s sober counterpart hemp (or THC-free CBD), it isn’t the DEA you should be worried about, it’s the FDA.

DEA has no jurisdiction

The Ninth Circuit Court of Appeals ruled that the DEA does not have jurisdiction to regulate non-psychoactive substances. By definition, industrial hemp has less than .3% THC and therefore meets the non-psychoactive definition. So CBD and other naturally occurring cannabinoids in hemp fall outside the jurisdiction of the DEA. Just be sure your hemp is imported from outside the U.S., to also be in compliance with the 2014 Congressional Farm Bill that formally legalized hemp.

The growing FDA aggression

Throughout the Obama Administration, the FDA has grown increasingly aggressive in their enforcement of regulations of what they deem as “medical claims.” The FDA thoroughly evaluates both explicit and implied claims on product labels, and all marketing materials – traditional and digital. So as a general rule of thumb, avoiding ‘disease words’ will skirt medical claims and can help you avoid getting an FDA warning letter – which likely will give you 15 days to rectify ALL instances of claims and/or develop a plan (which the FDA must approve) for doing so within 30 days.

Don’t talk about disease to avoid FDA interference

Probably the fastest way to get your brand a warning letter is to start talking about disease, because where there’s disease there’s medical claims.  So avoid using these types of words/phrases:

  • Names of diseases and abnormal conditions (cancer, epilepsy, allergy, etc), and associated words like disease, condition, syndrome or symptom.
  • Adjectives or descriptions that imply a condition needing treatment. For example, persistent, chronic, serious or severe.
  • Symptoms of a disease or allergy, except signs of aging, PMS, menopause and occasional diarrhea or constipation.   
  • Causes of a disease, like infection, carcinogens, etc. You should also steer clear of using treatment-oriented words like anti-microbial, anti-viral and so forth. 

. . . Or curing a disease

Of course you wouldn’t be talking about disease if you weren’t talking about curing that disease, right? Unfortunately that’s forbidden too, so avoid these words:

  • ‘Treating’ or ‘curing’ a disease with ‘medicine’ or other ‘remedies.’ It should be obvious to say “X cures Y” is a medical claim, but I’ll lay it out there anyway.
  • Prevention or reduced-risk of a disease, unless the prevention or reduced risk is an FDA pre-authorized health claim linked to a particular substance. FYI – the FDA has NO pre-authorized claims around hemp or CBD.
  • Claims that your product is a natural or herbal alternative to a drug. Ouch, this one stings doesn’t it – isn’t that the positioning of our entire industry? Sorry, mum’s the word if you want to avoid the FDA, though.

So if you are marketing hemp or a CBD supplement, don’t worry about the DEA. They have no jurisdiction and thanks to suits filed by the Hemp Industries Association and the Hoban Law Group in Denver, should be getting put back in their place in the near future. And stay off the FDA’s radar by keeping silent on disease terms.

Article by:

Chad Reiling
Digital Marketing Director
Studio 420 – A Cannabis Friendly Creative Agency
(303) 476-3057
LinkedIn:  /in/chadreiling | Twitter @chadreiling