“Selling unapproved products with unsubstantiated therapeutic claims is not only a violation of the law, but also can put patients at risk, as these products have not been proven to be safe or effective. This deceptive marketing of unproven treatments also raises significant public health concerns, because patients and other consumers may be influenced not to use approved therapies to treat serious and even fatal diseases.” — U.S. Food and Drug Administration
Hemp marketing is notoriously complicated.
First, they tell you to write for humans. Then for search engines. Then for budtenders. Now for… the FDA?
While the CBD market may be federally “legal,” most marketers are still unaware that CBD products (and the language used to sell them) are heavily regulated by the U.S. Food and Drug Administration (FDA).
CBD marketing has to comply with the highly specific rules the government releases—and that compliance extends far beyond the labels on your products. Every word you write about CBD on your website is ripe for scrutiny by the FDA, from your web copy to your product names. Fail to comply with their rules (naming a product “healing balm,” for example), and you could get slapped with a warning letter and a fine at best—or risk total shutdown, at worst.
In other words, just because it’s legal to sell CBD doesn’t mean it’s legal to make therapeutic claims about it. Let’s take a look at why that is and what you can do to keep it 100 in this high-stakes hemp scene.
Spoiler alert: an FDA disclaimer at the bottom of your product description page isn’t gonna cut it.
If CBD is legal, why do we have to be so careful?
While the 2018 Farm Bill made it federally okay to produce and sell industrial hemp products (provided that they come from plants containing less than 0.3% THC), it explicitly preserved the FDA’s regulatory powers over all cannabis and hemp-related marketing.
The FDA has their reasons, and they’re sticking to them until they have enough evidence to act otherwise.
First off, Cannabidiol (CBD) is the active ingredient in a bonafide, FDA-approved drug: Epidiolex. Why does that matter? Because active ingredients in prescription medications fall into a special category of substances, which fall under the watchful eye of the FDA. That means they must comply with the relevant rules in the Federal Food, Drug, and Cosmetic Act (FD&C Act).
The second big issue has to do with public safety. The FDA still technically hasn’t labeled CBD as “GRAS” (generally recognized as safe) because it needs more data about the safety of long-term use, side effects, and proper dosing. To make matters even trickier, the hemp plant is a bioaccumulator, which means it can absorb contaminants from the soil it grows in. Contaminated starting material means a potentially toxic finished product—and yet no regulatory body exists to make sure snake oil doesn’t reach the market.
For a comprehensive list of what you can and can’t do and say about CBD, visit the FDA’s oft-updated FDA Regulation of Cannabis and Cannabis-Derived Products, Including Cannabidiol (CBD).
So, what can you do about it?
Just so we’re clear, this post isn’t using cleverly evasive language to dodge the FDA’s rules.
It’s knowing how to respect the rules to the best of your ability, because the FDA isn’t just trying to be a buzzkill. It’s trying to prevent real-life patients from abandoning their real-life therapies in favor of hyped-up products of questionable quality.
Step 1: Make sure your hemp source is legit.
You already know that high-quality hemp starts with high-quality soil. Confirm that a third-party lab tests each batch for contaminants and heavy metals, and make sure you can provide receipts (QR codes work great) on your e-commerce platform.
Step 2: Do your homework.
Don’t provide too little information, and make damn sure you don’t provide false information. New CBD studies come out on the daily, and people are always looking for up-to-date, quality resources. Quadruple-check the studies you base your conclusions on, and specify their methods. (Were they conducted in a petri dish? On rats? On humans? Has the study been replicated?)
Step 3: Remove medical claims and create transparent value propositions.
Humans are human, and they’ll still base their expectations on the words on your site. One could argue that writing “CBD may be helpful” instead of “CBD is proven to cure anxiety” qualifies as following the rules, since “may be” indicates possibility rather than a guarantee. But this isn’t the LSAT—it’s real life.
Bottom line: rules are rules
CBD can’t cure, prevent, treat, heal, mend, remedy, or fix.
On the other hand, could it brighten, enliven, enrich, soften, illuminate, or enhance? We can’t say for sure, but it’s possible.
What makes a strong CBD brand is ethical responsibility, transparency, and an understanding of how much we still don’t know about this plant. A strong CBD brand isn’t trying to convince you that CBD will cure cancer or get your parents back together. It’s acknowledging the complexity of the plant, its messed up history, and the journey—more accurately, the experiment—we’re all in on together.
At the end of the day, we still don’t know exactly how CBD works. We have a lot of preclinical studies, but the proverbial science isn’t in yet.
So instead of using ambiguous, bland language to dodge the FDA’s linguistic laser beams, remember to keep it real (and researched) with your marketing. There are plenty of ways to entice your target customers without misinforming them or making false promises.
If your CBD brand needs a hand with the prickly penmanship of the hemp market, contact our team of expert keyword smiths and strategists to get you started—by the book.
This is not intended to be a substitute for legal advice.