State and federal law governing the manufacture and sale of hemp cannabinoid products is complex, contradictory, and frequently a moving target. Operators in this space must navigate this challenging regulatory landscape at every point in the supply chain from cultivation to ultimate retail sale. When it comes to the advertising of hemp products, operators must abide by both federal law and the patchwork of hemp product advertising rules and regulations under state law.
This course will cover federal oversight for marketing and advertising claims under the Federal Food Drug & Cosmetic Act (“FFDCA”) and the Federal Trade Commission Act. The FFDCA is the primary federal law regulating most foods, dietary supplements, cosmetics, drugs, medical devices, tobacco products, while the FTC has primary responsibility for the advertising of dietary supplements. This course will cover permissible marketing claims based on product category, the role of testimonials/consumer reviews, FDA warning letters, substantiation requirements, and enforcement trends. Under state law, the course will cover themes and trends in State CBD/cannabinoid advertising regulations, including the most recently enacted state laws with advertising restrictions. In addition to federal and state law and regulation, advertisers must also consider social media platform advertising policies for hemp products and the emerging role of AI and advertising. This course will discuss these current topics as well as best practices when advertising and marketing hemp products.
This course is co-sponsored with myLawCLE.
Key topics to be discussed:
What does "hemp-derived cannabinoid" encompass
FDA/FTC Overlapping Jurisdiction
Social Media Advertising Policies
AI and Advertising
Date / Time: July 25, 2023
Cassia Furman | Vicente LLP
Cassia Furman is an equity partner and Executive Board member of leading cannabis law firm Vicente LLP. In addition to her firm management role, she leads the firm’s California Practice Group based in Los Angeles, where she counsels clients on a wide range of transactional, regulatory, and land use issues related to the cannabis industry.
Cassia specializes in the intersection of local and state regulation and private industry, having worked on both public and private sides of the negotiating table. Her background in public finance, land use planning, local government law, and commercial real estate provides insight into all phases of cannabis permitting and licensed operations. In addition to regulatory work, she focuses on cannabis supply chain transactions, working tirelessly to help her clients meet and exceed their business goals in an ever-changing landscape. Bringing her considerable industry experience to bear, she collaborates closely with licensed operators, brands, investors and landlords to anticipate new market forces and impacts before they occur. She favors a practical, results-oriented approach to the law and understands the nuances of creative problem-solving in heavily regulated industries.
Prior to joining Vicente LLP, Cassia worked with a noted public finance firm where she oversaw the organization and operations of dozens of special districts created to finance and develop complex public infrastructure projects. Cassia also assisted in the representation of numerous Colorado municipalities, where her duties included the drafting and implementation of comprehensive medical marijuana ordinances. She attended the University of Colorado School of Law and Hamilton College.
In addition to client advocacy, Cassia plays an active role in multiple California and national cannabis industry groups and speaks and writes frequently on cannabis legal issues. She is the co-author of “The Cannabis Business: Understanding Law, Finance and Governance in America’s Newest Industry” available in print from Routledge Press. Cassia has been recognized by the prestigious Chambers and Partners as one of the top cannabis lawyers in the United States in 2021 and 2022.
Andrea A. Golan | Vicente LLP
Andrea Golan serves as counsel in Vicente LLP’s Los Angeles office and a member of the firm’s Regulatory Compliance and Hemp and Cannabinoids Departments. Her practice focuses on advising businesses in ensuring compliance with regulatory requirements for cultivating, processing, testing, marketing, and selling cannabis products—including advising businesses with respect to the intersection of federal, state, and local laws.
Prior to joining Vicente LLP, Andrea was an associate attorney at a national insurance defense firm, where her practice focused on commercial and business litigation, public entity defense, catastrophic injury, and medical malpractice.
Andrea graduated magna cum laude from Whittier Law School, where she served as research editor of the Whittier Law Review. Prior to law school, Andrea worked in customs and regulatory compliance, where she handled sourcing, manufacturing, laboratory testing, packaging, labeling, customs compliance, and factory audits and inspections for housewares and consumables. Andrea also worked as a congressional liaison officer for the Federal Emergency Management Agency, where she served as a liaison to Members of Congress and their congressional staffers to ensure they were informed of FEMA policies and programs, in addition to assisting individuals and communities with disaster recovery.
I. What does “hemp-derived cannabinoid” encompass | 2:00pm – 2:10pm
Definition of hemp
Definition of “CBD”
Other cannabinoids extracted from hemp that are ingredients in a variety of product categories (foods, supplements, cosmetics, inhalables)
II. Federal Oversight | 2:10pm – 2:20pm
Federal Food, Drug, & Cosmetic Act (“FFDCA”): Primary federal law regulating most foods, dietary supplements, cosmetics, drugs, medical devices, tobacco products. Enforced by FDA. 21 USC 352
Permissible claims based on product type: Is it a food, dietary supplement, cosmetic, medical device, or drug?
FDA warning letters/enforcement examples, and trends
FDA/FTC Overlapping Jurisdiction
FTC: primary responsibility for the advertising of dietary supplements. broadly prohibits “unfair and deceptive acts and practices”, “false advertising”
False, misleading, or unsubstantiated advertising falls under the deception prong
Claims must be substantiated. Substantiation required:
A reasonable basis consisting of competent and reliable evidence for objective product claims
Competent and reliable scientific evidence to support health or safety claims
At least one well-controlled human clinical trial to support claims that a product is effective in curing, mitigating, or treating a serious disease
April 2023: FTC sends out 670 warning letters putting advertisers on notice that they must be able to substantiate their claims. Why: because FTC cannot impose civil penalties on first-time offenders without providing prior notice unless it goes through some cumbersome procedural steps
III. State Law | 2:20pm – 2:30pm
Themes and trends in State CBD/cannabinoid advertising regulations
Recent legislation regulating hemp product advertising – TN, AR, FL – some good examples, e.g., “no mythical creatures,” “no unicorns”
No resemblance to common foods; no shapes
Audience composition requirements
IV. Social Media Advertising Policies | 2:30pm – 2:40pm