United States: ASA Issues New Guidance On How To Advertise CBD Products Without Making A Hash Of It

Perhaps it's a sign of age, but it does amaze me that everywhere you go these days there seems to be a shop sign or a product label with a cannabis leaf on it. And not just in Amsterdam, but in the UK too! 

The ASA's new guidance on products containing Cannabidiol (CBD) is therefore timely. Their guidance is divided into 4 sections. 

First comes illegal substances, which are those CBD products that may contain the main psychoactive compound in cannabis, Tetrahydrocannabinol (THC) , even only in tiny quantities. In the 1980's, when Withnail and Danny were skinning up with 12 Rizlas to make the infamous Camberwell Carrot, illegal cannabis usually contained lower amounts of THC than modern skunk. Smoking a Camberwell Carrot made of contemporary skunk would not, we assume, be recommended. The ASA therefore points advertisers of CBD products to the Home Office factsheet and even recommended seeking specialist legal advice before bringing a product to market.  It's not like the ASA to recommend advertisers to take legal advice, which makes us wonder what they've been smoking since they joined the hipsters and moved to Shoreditch. They'll all be growing beards next.  

Secondly, the guidance considers the overlap between claims for CBD products and medicinal claims, which come under the remit of Medicines and Healthcare products Regulatory Agency (MHRA), who have become the ASA's new 'bestie' since issuing their joint Enforcement Notices against Covid-19 products. Products can be classified as medicines either because of their composition or because medical claims are made for them, i.e. claims that they can treat, prevent or cure a disease or an adverse condition. So if a product that contains CBD is advertised as having a medicinal effect, it will probably be classed as a medicine needing a medical product license before it can be advertised. On this point, the ASA refers to the MHRA Guidance Note 8 - and particularly to appendix 10 concerning product containing CBD. Caution is need here, as advertising an unlicensed medical product is a criminal offence.

The third area of focus is on non-medicinal products that might come under the definition of Novel Foods under EU Regulations.  Novel Foods may also need formal authorisation before they can be advertised, and the Food Standards Agency (FSA) has issued this Cannabidiol (CBD) Guidance.

Finally, comes "Food, glorious food! Hash cookies and brownies!" as Oliver nearly sang in the eponymous musical. If a product is not caught by the definitions above, it may be deemed to be a food or food supplement caught by EU food regulations and Section 15 of the CAP Code.

According to the EU Regulation on Nutrition and Health Claims for food, only authorised specific health claims listed in the EU Register can be used in food ads, and then only if the product satisfies the conditions of use. It is also important to remember that claims can only be made in relation to the ingredient, rather than whole product.  While there is scope for some flexibility in the language used, allowing for changes in the wording of the advertising claims from the permitted claim, any change must be made to improve consumer understanding, but without changing the meaning or strengthening the claim.  Any General health claims must be accompanied by a relevant, specific authorised health claim.   

Finally, advertisements for foods and food supplements must comply with Section 15, so it's worth referring to the ASA's advice on health claims and foods.

So if you are thinking of advertising a CBD product, please follow the ASA's advice and send us your copy first. And some samples.