Will the FTC Undertake Much less Stringent Substantiation Necessities for CBD Claims?

Will the FTC Adopt Less Stringent Substantiation Requirements for CBD Claims?

If you follow our blog you will know that we are closely monitoring enforcement actions by the Food and Drug Administration (FDA) and the Federal Trade Commission (FTC or the Commission) against companies that sell and commercialize cannabidiol (CBD) products.

Back in December, we discussed the FTC’s decision to introduce new and stricter enforcement practices for companies making false and misleading medical claims about their CBD products.

What was not publicly known at the time was that two FTC commissioners did not fully endorse the Commission’s newly adopted enforcement strategy. Ten days after the publication of this final round of FTC warning letters, Commissioners Rohit Chopra and Christine S. Wilson made personal statements to the commission expressing concerns about the FTC’s CBD enforcement priorities.

Although both commissioners agreed that the FTC should take enforcement action against companies making misleading and false claims, they suggested that the commission shift its enforcement priorities and not impose an overly high standard of justification on CBD companies.

In his statement, Commissioner Chopra reminded the FTC of the need to prioritize its powers to combat malpractice related to substance use disorder treatments, particularly opioid treatments – especially given the growing reliance on these substances since the beginning of COVID-19.

Back in 2018, Congress passed the Substance Disorder Prevention Act, which promotes the recovery and treatment of patients and communities with opioids (the SUPPORT Act), which empowered the Commission to impose civil penalties, reimbursements, damages and other facilities against actors impose misconduct related to substance use disorder treatment and prosecute misleading marketing of opioid treatment products.

Chopra believes that using the law enforcement agency of the FTC under the SUPPORT Act would increase the effectiveness of warning letters. Commissioner Chopra also argues that by introducing an “fair base” for claims, the FTC would likely incentivize voluntary compliance by marketers and thus operate more efficiently. To further improve efficiency, Chopra also suggests that the Commission shift its limited resources from small businesses to large businesses that are better funded and can therefore provide financial aid to victims.

For his part, Commissioner Wilson recommends that the FTC impose strict justification requirements “thriftily”. In its statement, Commission Wilson expressed concern about requiring such a level of claims support, which it believes could result in the denial of truthful, useful information to consumers, reduced research incentives, and potentially discouraging manufacturers from new CBD products. Bring products to market. To support its argument that the Commission should fail to impose such an onerous standard of justification, Wilson points to the existence of “many research studies […] Attempts are currently being made to determine whether these are other scientifically valid and safe uses [CBD]. “This shows that credible science already exists, or is on the way, to adequately support that CBD products can indeed treat certain medical conditions.

While it is clear that the FTC will continue to take enforcement action against bad actors who make completely false and misleading medical claims about their CBD products, statements by Commissioners Chopra and Wilson suggest that the commission is raising its enforcement standards for the CBD industry could refine and refine and possibly approve – or at least tolerate – “reasonable” claims based on reliable scientific data. This would, of course, greatly benefit the industry, which has conducted a wide range of studies into the therapeutic values ​​of CBD over the past two years and has asked federal regulators to set realistic standards to ensure compliance. and to give them the opportunity to operate lawfully in the market.