Be Very Skeptical of Cannabis Advertising

The level of straight-up false information in cannabis advertising online is staggering. It’s almost too hard to describe. As a cannabis attorney, I’m often stunned that companies push cannabis advertisements the way they do.

Over the years, I’ve spoken to dozens (maybe hundreds) of cannabis business owners who thought X was completely legal because of something they stumbled across on Twitter or Google. At the same time, I’ve spoken to cannabis consumers who were shocked to learn that the product they thought was 100% legal was, well, not.

So today, I want to highlight some of the more egregious things I see in online cannabis advertisements. I won’t name any companies specifically, and I’ve changed some of the quotes a bit.

“Farm Bill compliant CBD”

The 2018 Farm Bill is one of the least understood laws on the books, in my view. All it did was remove hemp from the Controlled Substances Act (CSA) and give the USDA authority to regulate the cultivation of hemp. The 2018 Farm Bill did not create a comprehensive regulatory system for manufacturing CBD products or selling CBD (unfortunately Congress used the term “hemp production” which has led to a lot of the confusion). In fact, as discussed below, the Farm Bill is pretty clear that the FDA can regulate consumable hemp products, which it has chosen not to do. All of this is to say, there is no such thing as a “Farm Bill compliant” CBD product, because it’s not something that the law addresses.

What about raw, smokable hemp? Well, it’s kind of the same deal. The law neither explicitly authorizes nor bans smokable hemp. Whether or not it is technically legal federally, it is not accurate to say that it’s compliant with the 2018 Farm Bill, which just doesn’t address it.

Despite all of this, I routinely see cannabis advertisements that claim that a product is 2018 Farm Bill compliant. I think what many of the folks out there may mean by this is that their product uses hemp that was sourced from a licensed hemp producer that complied with the 2018 Farm Bill. But words have meaning, and this is a totally different concept. If that’s the actual case, it’s important to be clear.

“Yes, CBD is legal in X state” or “100% legal” or “Legal in all 50 states”

Go to Google and type in “Is CBD legal in [State]”. You will see a dozen blog posts on there with affiliate marketing, many of which will categorically say “yes.” And in most cases, this is just wrong.

For years, our firm has researched CBD laws in all 50 states. Having done this myself for so long, I can definitively say four things about CBD state laws:

1. there is no kind of CBD product that is permitted in all 50 states;
2. even states that allow certain CBD products may impose wildly different restrictions on them;
3. relatedly, no two states’ CBD laws are the same, and
4. annoyingly, state CBD laws and policies change All. The. Time.

On this last point, I’m not exaggerating. If I research a state’s CBD laws a few weeks apart, there’s a sizable chance that the law has changed, a new regulation has taken force, or a state agency has posted some binding or semi-binding guidance on a janky PDF on its website.

With all of this in mind, there are no CBD products that are 100% legal or legal in all 50 states. It’s just not a thing. Cannabis advertisements that say otherwise are not accurate.

“FDA approved CBD product”

The FDA does not approve CBD products. In fact, the FDA says that consumable CBD products are illegal (obviously other than Epidiolex). It has taken that position since the day the 2018 Farm Bill became law! The FDA also does not regulate other cannabinoids like delta-8 THC, THCA, etc. If a cannabis advertisement says that the CBD product is FDA approved, it’s just wrong.

There are many false or misleading cannabis advertisements out there. This can lead to serious problems such as FTC enforcement actions. It can also lead to situations where earnest customers believe they are buying something different from what they are actually buying and face real world consequences. Read this article about teens in Texas reportedly being arrested for using delta-8 THC products, which, in our experience, are often advertised as “legal THC.”

Fast and loose cannabis advertisements may be a fast way to make a buck, but that shouldn’t be the first thing that businesses care about. Honest customer relationships and respect for the law should be paramount.