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Marketing CBD Products: ASA publishes new guidance for 'budding' businesses

Addressing the complex issues around CBD ads

06 September 2021

As the UK becomes one of the largest cannabinoids consumer markets in the world, the Advertising Standards Authority (ASA) has advised of four key areas that require particular consideration in CBD product advertisement.

As the growth of the cannabinoid sector continues in the UK, the ASA (the UK advertising regulator) has recently published guidance for businesses operating in the CBD industry. Such guidance covers (i) compliance with the UK Advertising Codes (i.e. the CAP and BCAP Codes); and (ii) the interaction between the UK Advertising Codes and product-specific regulations.

In particular, the ASA's guidance focussed on four key areas, being:

a)       the use of Tetrahydrocannabinol ("THC");

b)      compliance with medical regulations;

c)       consideration of the Novel Foods Regulations; and

d)      compliance with general Food regulations for CBD edibles.

In its guidance, the ASA advised that businesses marketing a CBD product that may contain traces of THC (a "controlled-drug") should take particular care by reviewing the Home Office Drugs Licensing factsheet and seeking specialist legal advice before any CBD product is marketed in the UK.

If a CBD product is launched on the UK market, businesses need to ensure that their advertisements comply with the medical regulations. If the CBD product has not been licensed by the Medicines and Healthcare products Regulatory Agency (MHRA), the UK medicines regulator, the use of any medical claim in advertising should be avoided, otherwise this may trigger a need to have the products licensed. In its guidance, the ASA states that it considers language such as “cure”, “restore”, “prevent”, “avoid”, “fight” or “heal" to fall under the term of a medical claim.

CBD products that are not classed as medical products, may be classed as food products. In such case they would need to comply with the Novel Food Regulations, requiring authorisation and fulfilling risk assessment requirements before the food product can be sold. In its guidance, the ASA advises that businesses review the Novel Food Guidance published by the Foods Standards Agency. Further, with regards to advertising CBD edible products, particular attention should be given to any health claims

made. For instance, only authorised health claims listed in the Great Britain Nutrition and Health Register may be used in advertising in Great Britain (the EU Register being applicable in the case of Northern Ireland), and only if the product satisfies the conditions of use. Any general health claims must be accompanied by a relevant specific authorised health claim if used in the products advertisement.

The above guidance highlights some of the complexities of marketing CBD products in the UK. Indeed, businesses will need to carefully assess their advertising and marketing activities to ensure compliance with the UK Advertising Codes and product-specific regulations. Failure to comply can lead to sanctions including the removal of advertisements, adverse publicity and prosecution if in breach of applicable law. As the consumer market for CBD products continues to grow and evolve, so too may the Advertising Codes, and therefore continued awareness of the advertising requirements should be observed to reduce risk of breach in the future.

For further information on the product-specific regulations that govern the marketing of CBD products in the UK, please read our articles published as part of our 'Green Rush' series.

Molly Margiotta contributed to the writing of this article