A Primer on the CBD Interim Rules: What Broadcasters and Media Companies Need to Know

Cannabidiol ("CBD") oil, a product that can be derived from hemp or marijuana plants, is an undeniably hot commodity right now. You may have seen CBD gummies, CBD topical creams, and even CBD-infused pillows for sale at your local store. At this point you are wondering if your broadcast station can advertise these products. CommLawBlog covered CBD advertising back in late February of 2019, and in that article, we recommended that broadcasters hold off on accepting such advertising until more rules governing CBD were put into place, anticipating that broadcasters would be able advertise CBD in the near future. Well, friends, the future is (at least in part) here, although not without complications. The United States Department of Agriculture ("USDA") on October 31, 2019, published interim rules on the "Establishment of a Domestic Hemp Production Program" - which you can read in the Federal Register. The Comment date for these rules is December 30, 2019, meaning that the USDA will be in a position to adopt final rules for production of hemp and, therefore, CBD derived from hemp, by early 2020.

These rules should help alleviate the concerns about advertising CBD, even though they do not address advertising specifically. However, before you go off and start advertising this product, it's important to delve into the implications of these interim rules.

The legal production of hemp products began with the passage of the 2014 Farm Bill, which authorized experimental production of hemp and hemp-derived products such as CBD. This was followed by the 2018 Farm bill, which widened legal hemp production and is where these new rules originated. In addition to the USDA rules, states and tribal authorities will also be able to regulate the distribution and use of CBD within their jurisdiction if they have a regulatory plan approved by the USDA. Some states and Native American tribes have adopted plans and have submitted them to the USDA for approval already. But don't get too excited yet! None of these state/tribal plans have yet been approved by the USDA, and may well be modified from the form submitted before they are approved. There is also the possibility that the final USDA rules could differ from the current interim rules.

Another point of consideration is that certain aspects of CBD advertising come under the auspices of federal agencies other than the FCC. Those who have viewed our webinar on Controversial Advertising know that regulatory agencies can be very punitive when it comes to the airing of false claims in particular. The Federal Trade Commission ("FTC"), for example, can hold broadcasters liable for advertising claiming that any non-FDA approved product can treat specific symptoms or diseases. Any claims regarding a CBD product's effectiveness or curative properties should be reviewed very carefully.

Thinking about advertising CBD oil-infused potato chips? The Food and Drug Administration ("FDA") is in charge of regulating CBD food and beverage products. As of the writing of this article, the FDA has approved of only one CBD-based drug, Epidiolex, which is used to control seizures. Until they have conducted further research on its effects, the FDA will continue to prohibit CBD in food, drugs, and some cosmetics, and some state and local health departments (including in New York City and California) have followed the FDA's lead by confiscating edible CBD products from stores. Arguably, by advertising those stores as selling CBD products, the broadcaster could be facilitating a crime.

Also worth remembering is that while many CBD oil products use CBD legally derived from hemp, CBD may also be derived from marijuana, which would make the product illegal under the Controlled Substances Act. Because the sale, use, and distribution of marijuana and its derivatives remain entirely illegal at the federal level, accepting advertising for marijuana-derived CBD products could subject a broadcast station to enforcement actions by the Drug Enforcement Agency ("DEA") or Department of Justice ("DOJ").

So what's broadcaster's bottom line? For now, continued caution remains the watchword. While the interim USDA rules are in effect, no businesses or producers have actually had time to obtain the licenses and approvals required under those rules and as such, there are still no legally-approved hemp producers in the United States - outside of the pilot programs authorized under the 2014 Farm Bill. Even as producers do become authorized under those rules, broadcasters should carefully review the rules and regulations of their own states to ensure that they do not produce a contrary result. As a reminder, a broadcast license is a federal license. Technically, until the CBD in a product is derived from a legally authorized hemp producer, that product remains illegal. Take heart, though - once hemp producers begin to be approved under the USDA regulations, or state or local plans, the CBD advertising world will be your oyster.

This article may have created new questions on CBD advertising. Should that be the case, make sure to contact your legal counsel. And, as always, continue to check CommLawBlog for further developments.