On December 17, 2020, the Federal Trade Commission (FTC) announced that it is taking legal action against six marketers of cannabidiol (CBD) products for allegedly making deceptive and scientifically unsupported claims related to the products’ abilities to treat serious health conditions, such as cancer, heart disease, hypertension, and Alzheimer’s disease. Although this marks the FTC’s first law enforcement action on deceptive claims made by marketers of CBD-containing products, these lawsuits follow numerous warning letters issued by the FTC and the Food and Drug Administration (FDA) over the last two years.
This crackdown is part of the FTC’s Operation CBDeceit aimed at protecting consumers from the growing number of false, deceptive, and misleading health claims made in connection with CBD-containing products.
The FTC initiated six lawsuits against businesses and their principals relating to a variety of product forms, including oils, balms, tinctures, lozenges, vape pens, creams, coffee, and gummies. By way of example, the complaints assert that the following types of allegedly unsubstantiated claims made by the companies are unlawful:
- The CBD product is safe for all users;
- The CBD product can treat pain better than prescription medications like OxyContin;
- The CBD product can improve serious health conditions (such as chronic pain and hypertension), provide neurological benefits (such as preventing age-related cognitive decline), prevent cancer, diabetes, stroke, and heart disease, and treat/prevent/mitigate diseases and conditions such as artery blockage, glaucoma, autism, schizophrenia, Alzheimer’s disease, arthritis, autoimmune disease, irritable bowel syndrome, and AIDS;
- The CBD product is “medically proven” to improve a variety of conditions;
- The CBD product has antibacterial properties;
- The U.S. government has confirmed the health benefits of CBD; and
- The marketer has studies or scientific research substantiating its product claims.
The proposed administrative orders settling these lawsuits would, among other things, prohibit the respondents from making certain prevention, treatment, or safety claims about dietary supplements, foods, or drugs without human clinical testing to substantiate the claims and would require competent and reliable scientific evidence for any other health-related product claims. Further, each of the companies must notify their customers of the administrative order and, except in one instance, the orders contemplate that the corporate and individual respondents must pay anywhere between $20,000 and $85,000 to the FTC.
Statements issued by FTC Commissioners simultaneous with the FTC’s announcement offer insight into how the Commission may approach enforcement activity regarding CBD-containing products going forward.
- Commissioner Rohit Chopra urged the FTC to focus its enforcement efforts on larger firms making baseless CBD claims, as opposed to small businesses.
- Commissioner Christine S. Wilson cautioned against imposing an unduly high standard of substantiation on product claims other than disease or other serious health claims. To do so, she asserted, could risk denying consumers truthful, potentially useful information, diminish incentives to conduct research on CBD as an active ingredient, and discourage marketers from introducing new products to the market.
We expect that the FTC will continue to be active in taking legal action against marketers of CBD-containing products, paying particular attention to those marketers making express claims about diseases or other serious health issues with minimal scientific support for such claims. However, the CBD fox is so far out of the henhouse that it will be interesting to see whether the FTC can fence him in.
 See, e.g., Press Release, FTC and FDA Warn Florida Company Marketing CBD Products about Claims Related to Treating Autism, ADHD, Parkinson’s, Alzheimer’s, and Other Medical Conditions (Oct. 22, 2019); Press Release, FTC Sends Warning Letters to Companies Advertising Their CBD-Infused Products as Treatments for Serious Diseases, Including Cancer, Alzheimer’s, and Multiple Sclerosis (Sept. 10, 2019); Press Release, FTC Joins FDA in Sending Warning Letters to Companies Advertising and Selling Products Containing Cannabidiol (CBD) Claiming to Treat Alzheimer’s, Cancer, and Other Diseases (Apr. 2, 2019).
 Statement of Commissioner Christine S. Wilson, In the Matter of Bionatrol Health, LLC, In the Matter of Epichouse, LLC, In the Matter of CBD Meds, Inc., In the Matter of HempmeCBD, In the Matter of Reef Industries, In the Matter of Steves Distributing, LLC (Dec. 17, 2020).