Companies selling hemp-derived products, including cannabidiol-infused products, have been faced with significant marketing challenges. For the past 18 months, the industry has been hit with a wave of suspensions, deletions, and warnings for advertising hemp-derived cannabidiol (CBD) products. Yet, depending on the platform, the reasons for such actions vary.
Facebook, for example, does not offer public terms and conditions or policies that expressly prohibit CBD advertisements on that platform. Instead, the company justifies its ban by stating on its website: “Ads must not promote the sale or use of illicit or recreational drugs, or other unsafe substances, products or supplements, as determined by Facebook’s in its sole discretion.” Interestingly, the list of problematic products and substances Facebook provides does not include CBD.
Other social media companies, such as Twitter, offer CBD-specific policies that are overly restrictive. In the U.S., Twitter permits “approved CBD topical advertisers” provided they meet the following requirements:
- Advertisers must be licensed by the appropriate authorities and pre-authorized by Twitter.
- Advertisers may only promote noningestible, legally derived CBD topical products.
- Advertisers may only target jurisdictions in which they are licensed to promote these products or services online.
- Advertisers may not target Georgia, Idaho, Iowa, Mississippi, Missouri, Nebraska, Oklahoma, South Dakota, or Virginia.
- Advertisers are responsible for complying with all laws and regulations.
- Advertisers may not target customers under the age of 21.
These are extremely restrictive and paternalistic regulations. Ironically, Twitter’s advertising policy places more constraints on CBD advertisers than many states do on CBD companies. These terms are so broad it is likely that most companies advertising CBD on Twitter are in clear violation of those requirements, and therefore, are at risk of seeing their accounts suspended or deleted.
This level of risk is hugely problematic, especially for small CBD companies. Any small business owner knows that getting social media followers takes time and money. With the risk of seeing an account shut down and losing all the good will associated with that account, social media advertising can be a serious gamble for CBD businesses. There is no clear right of appeal for these denials, and the idea of taking a social media giant to court (or forced arbitration) is just unfathomable for most CBD companies.
Regrettably, social media companies are not the only group creating marketing obstacles for the CBD industry. The Cellular Telecommunications and Internet Association (CTIA), a nonprofit that monitors SHAFT (Sex, Hate, Alcohol, Firearms, and Tobacco) content and reports violations to the FCC, recently added CBD to its list of illicit substances and prohibited content. CTIA deems that while a growing number of states have legalized medical or recreational cannabis, including CBD use, “Federal law still prohibits cannabis use”, and thus, companies “cannot send text messages with cannabis- or CBD-related content.” This means that carriers will suspect any short code that sends CBD-related content, despite the legal distinction between hemp-derived CBD, which is lawful, and marijuana-derived CBD, which remains a Schedule 1 controlled substance under the Federal Controlled Substances Act.
Notwithstanding the fact that the FDA has publicly acknowledged that there may be a regulatory pathway to marketing certain products containing hemp-derived CBD, such as cosmetics, many social media companies and organizations like CTIA have apparently taken it upon themselves to step into the shoes of regulators and ban all hemp-derived CBD products. To add insult to injury, many social media companies have yet to publish formal guidance on this issue and are choosing to arbitrarily censor CBD.
These overly restrictive and widely disparate regulations against hemp-derived CBD products reflect the confusing legal landscape of these products. As I have previously explained, the lack of federal regulations, combined with the patchwork of state-by-state regulations, has created a great deal of confusion regarding the legality of these products — but also contributed to the misinformation surrounding the legal status of hemp-derived CBD, resulting in more confusion in the consumers’ minds.
In response to these discriminatory marketing policies targeting CBD, a coalition of hemp-derived CBD brands, including Prima, a leading B-Corp, have organized a “Stop Censoring CBD #freeCBD” initiative to help bring awareness to this pervasive issue. The coalition’s main objectives are to encourage lawmakers to pass the Hemp Access and Consumer Safety Act (S. 1698), which proposes to establish legal and regulatory pathways for the sale of hemp-derived products; and to pressure the FDA to recognize the legal distinction between hemp-derived and marijuana-derived CBD and to develop a regulatory framework for the manufacture, sale, and marketing of those products.
This initiative shows, once again, that the industry is determined to legitimize its lawful commercial activities by advocating for federal standards and regulations that will provide consumers access to safer CBD products. For now, one thing is clear, social media companies and nonprofits like CTIA should step out of the shoes of the government and let CBD companies advertise products that are lawful or ban content of their choosing but provide clear and legitimate guidelines for such policies that align with existing CBD regulations.
Nathalie Bougenies chairs Harris Bricken‘s hemp CBD practice group and focuses her practice on health and wellness, in addition to corporate transactions and regulatory compliance. For the past three years, Nathalie has helped clients navigate the complex regulatory landscape of hemp products intended for human consumption and advises domestic and international clients on the sale, distribution, marketing, labeling, and importation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s “Marketplace.” She also authors a weekly column for “Above the Law” that features content on cannabis policy and regulation and is a regular contributor to her firm’s “Canna Law Blog.” For three consecutive years, Nathalie has been named Rising Star by Super Lawyers.
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