FDA Issues New Enforcement Letters to CBD Companies

Two months ago, the FDA disclosed that they recently warned 15 companies producing and\or selling CBD that their actions in marketing the products were contrary to Federal Law. We were just gearing up for the holidays, so everyone at OG+S didn’t want to sour the mood, but now that we’re halfway though January, this development is worth discussing.

What is the FDA’s beef?: We’ve discussed this issue before, so I won’t go into great detail, but to summarize: Although CBD is legal in some states, the Food and Drug Administration has taken the position that CBD is a) not a supplement; b) CBD is a “drug” (as in Rx) and is currently being marketed as such, legally, in two forms. Therefore, nobody else is allowed to market CBD as a drug – unless it’s approved by the FDA; and c) CBD cannot legally be added to food as an additive.

What does this mean for CBD businesses?: It’s tough out there! Honestly. We’ve heard consistently from clients working in the industry that marketing (especially for retailers) is difficult. Specifically, the inability to make health claims (as supplement retailers do) of any kind is especially frustrating. (i.e. “How am I supposed to market to new people if I can’t tell them the benefits of CBD?”)

It’s Still the Wild West: I know what you’re thinking – it’s hard to compete by following the rules, especially when nobody else is. That’s true – very few companies who market CBD are following the guidelines the FDA would like them to. That said, you should follow the rules! However, after reviewing the new enforcement letters, the FDA seems to be concentrating their efforts on major offenders. (i.e. people who are making wild claims like “[CBD] can improve the quality of the sleep you get and even help prevent conditions like diabetes and Alzheimer’s” or “CBD has been shown to promote abnormal cell death in certain skin conditions and has long been used as a topical pain and anti-inflammatory solution.”)

So the take away?: The FDA is sticking to their guns for the time being, and you should be sure to follow the guidelines at all times. But, major offenders are still the target for now, so you have time to clean up your marketing materials before the FDA comes knocking. (And….don’t make wild claims… “CBD prevents diabetes” is pretty low hanging fruit for the FDA to go after. Oh….and you don’t think the FDA is checking your Insta…they are…just ask SunFlora, Inc.!)