Does the 2018 Farm Bill Impact CBD Marketing?

by | Dec 26, 2018

The 2018 Farm Bill, made into law in late December 2018, includes a measure to legalize hemp nationwide, eliminating the plant’s classification as a Schedule I controlled substance under the Controlled Substances Act (CSA). The adoption of this measure builds on the 2014 Farm Bill’s inclusion of an industrial hemp pilot program.

The 2018 Farm Bill, though, does much more. It legalizes (most) industrial hemp for interstate commerce, something that remains federally prohibited despite the fact that hemp is legal on the state level in most of America. The change means a great deal for the industrial hemp-derived CBD industry, which has tailored CBD marketing strategies around federal prohibition.

Now that hemp has a new legal status, what does it mean for CBD marketing and messaging? Will anything change?

What was the status of industrial hemp CBD before the 2018 Farm Bill?

For many years, the federal government’s policies contradicted each other, creating a messy and confusing landscape for brands and marketers to navigate. Under the U.S. Drug Enforcement Administration (DEA), “marihuana extract” is considered a Schedule I drug, defined as a substance with high addiction rates and no medical value.

Meanwhile, the 2014 Farm Bill legalized “industrial hemp.” These are cannabis sativa L plants bred to contain 0.3% or less of the intoxicating cannabinoid THC, for cultivation by universities and state agencies for research purposes. It didn’t create a full-blown legal hemp industry, but it made a significant step toward legalizing the plant and its products. However, the 2014 Farm Bill did not address hemp’s status as a Schedule I substance under the Controlled Substances Act (CSA). As a result, there were two contradictory regulations: one OK’d CBD extracts from industrial hemp, and the other demonized and destabilized the same extract.

Fortunately for most CBD providers, the federal government wasn’t inclined to raid and shut down industrial hemp farms, especially considering that most states legalized hemp in some form on their own. However, the contradiction in federal law shut out industrial hemp growers, manufacturers, and others from basic services available to other businesses. One of those basic services is advertising, as platforms added industrial hemp-derived CBD to their list of substances forbidden from their networks. Some entities disallow CBD-related advertisements and content promoting an “illegal product.” Others are concerned about the promotion of a supplement-type substance on their channels.

What exactly does the 2018 Farm Bill change for industrial hemp?

Language in the 2018 Farm Bill clarifies this confusing and convoluted approach to “marihuana extract.” The bill explicitly states that the term “marihuana” excludes hemp. It also further defines what qualifies as a Schedule I controlled substance to exclude hemp as a source of tetrahydrocannabinol (THC).

The bill reads:

(B) The term ‘marihuana’ does not include— 10 ‘‘(i) hemp, as defined in section 297A of the 11 Agricultural Marketing Act of 1946; or 12 ‘‘(ii) the’’. 13 (b) TETRAHYDROCANNABINOL.—Schedule I, as set 14 forth in section 202(c) of the Controlled Substances Act 15 (21 U.S.C. 812(c)), is amended in subsection (c)(17) by 16 inserting after ‘‘Tetrahydrocannabinols’’ the following: ‘‘, 17 except for tetrahydrocannabinols in hemp (as defined 18 under section 297A of the Agricultural Marketing Act of 19 1946).

As a result, industrial hemp-derived CBD is no longer classified as a dangerous illicit substance. It will instead be treated like any other agricultural crop in the U.S., eligible for crop insurance and interstate commerce.

CBD product oversight: the DEA goes, the FDA stays

Under the 2018 Farm Bill, the DEA can no longer intervene in industrial hemp-related interstate commerce, firmly removing the threat of criminal penalties. However, The Food and Drug Administration (FDA) continues to regulate industrial hemp-derived CBD oils and other hemp products. Of utmost importance to this regulation is the marketing messaging attached to the product. (The exemptions to this rule are hemp-derived products considered “generally safe,” such as hemp seeds.)

Even while CBD operated in a quasi-legal space, the FDA still lent regulatory oversight to the burgeoning industry. According to the FDA, CBD does not meet the definition of a “dietary supplement” because it is an active ingredient in FDA-approved pharmaceuticals, such as Epidiolex. As a pharmaceutical, CBD is subjected to “substantial clinical investigation before [being] marketed as foods or dietary supplements.” You can read the entire FDA statement here.

Several CBD brands have received “warning letters” from the FDA in years past. These letters state that incorrectly positioning a product in the market constitutes a violation of the Federal Food, Drug and Cosmetic (FD&C) Act. The FDA’s warning letters cite passages from the company website, e-commerce product listings, and social media posts to build their case. These letters give CBD companies 15 working days to make demonstrable corrections to their product positioning.

The FDA’s labyrinthian regulatory framework may seem daunting, but the legalization of hemp is still a time for celebration. It’s also a time to get serious about your brand messaging: are you making potentially-false claims about your product, or guaranteeing results? Take the time to examine your CBD marketing. Take a look at some of our basic tips.

What are some CBD marketing messaging best practices?

  • Avoid making medical claims: This is CBD 101. Never claim that CBD can cure or drastically improve illnesses, conditions, or appearance. That sort of absolutism can land you in hot water.
  • Publish your lab results: Be transparent about the quality of your product by publishing your lab results. Make them easily accessible on your website, and even from your product via a QR tag.
  • Boast your third-party certifications. If you’ve obtained certification such as GMP or manufacture to ISO standards, make those important milestones a prominent part of your website messaging.
  • Trademark your brand: Unfortunately, some CBD brands skipped this important step, believing that they couldn’t trademark their brand while industrial hemp-derived CBD was still under Schedule I classification. Trademarking your brand is an important step to take to properly protect your intellectual property. This protection plays an important role in ensuring brand consistency in the ever-growing marketplace.

The passage of the 2018 Farm Bill is certainly an exciting time for industrial hemp producers and hemp CBD product providers, but it’s important not to get too caught up in the moment and make a critical mistake. CBD continues to be a highly-regulated industry in an ever-growing field, and CBD marketing needs to remain compliant. That means that your messaging and marketing materials are more important than ever. They’ll be central to your strategy as you compete (responsibly) against other brands in a market expected to grow by the billions.