Advertising Notices & Updates
New notices and updates on advertising you need to know:
CBD Ads/Inserts running them remains risky at the Moment
Why do those dang lawyers tell me not to run CBD ads/inserts?
The MPA hotline team does not enjoy raining on the CBD advertisements parade. In fact, media lawyers around the country are frustrated because there are not (yet) any rules that we can use to help clear and run CBD ads. Running such ads can be very risky – because the feds are watching closely.
The Food and Drug Administration (FDA) recently made public three Warning Letters sent to Cannabidioil (CBD) and hemp oil product companies for health and wellness claims made on the company websites. These letters were jointly signed by the FDA and Federal Trade Commission (FTC).
In the letters, the FDA and FTC list specific violations, including unsubstantiated advertising claims regarding the treatment of various health issues. One of the FTC’s priorities is health claims and they require all advertisements regarding health claims to be “substantiated by competent and reliable scientific evidence.”
MOREOVER, as a publisher, if you help craft an ad for CBD/hemp it can increase your liability.
Bottom line: We recommend that you reject any requests for CBD or hemp ads that make health claims.
The Warning Letters can be found at the following links:
PotNetwork Holdings, Inc.,
https://www.fda.gov/ICECI/EnforcementActions/WarningLetters/ucm634738.htm
Nutra Pure LLC,
https://www.fda.gov/ICECI/EnforcementActions/WarningLetters/ucm634776.htm
Advanced Spine and Pain, LLC (dba Relievus),
https://www.fda.gov/ICECI/EnforcementActions/WarningLetters/ucm634781.htm
MPAS MEMBERSHIP NOTICE
MARIJUANA ADVERTISING
In the last few years, there have been many changes in state and federal law regarding marijuana and related products. Members need to know the following before accepting advertisements for these products.
As always, pay particular attention to ads that may violate certain laws prohibiting deceptive advertising. You may encounter these more often now with ads that tout the medical benefits of marijuana and related products.
MEDICAL MARIJUANA
ACCEPT ads about medical marijuana that do not offer to sell it, buy it, or certify its use (e.g., ads that give contact information to learn about medical marijuana, and ads about “comfort and care” societies offering information on medical marijuana, etc.).
DECLINE ads offering to sell or buy “legal” medical marijuana—including from dispensaries and cooperatives. This includes ads that offer products for consumption that contain marijuana.
DECLINE ads offering careers as medical marijuana “caregivers” or growers.
DECLINE ads offering “certification,” “registration,” or “licenses” for medical marijuana.
SCRUTINIZE “doctor” ads. Patients must be seen by a doctor with whom they have a pre-existing and ongoing relationship as their treating physician. If the ad implies that a doctor will certify a medical need or targets new patients who are looking for certification, decline the ad.
RECREATIONAL MARIJUANA
DECLINE ads offering to buy, sell, or grow recreational marijuana, including any marijuana-infused products. The Michigan Bureau of Marijuana Regulation is preparing regulations that will govern advertising for recreational marijuana, which are expected to be announced before the end of 2019. We will revise this guidance after those regulations take effect.
INDUSTRIAL HEMP
ACCEPT ads for industrial hemp, including cannabidiol or “CBD oil,” if the product has less than 0.3% THC on a dry-weight basis. Such products are no longer considered “marijuana” under state and federal law. P.L. 115–334 (U.S. 2018); P.A. 641 (Mich. 2019).
The Michigan Legislature directed the Michigan Department of Agriculture and Rural Development to “establish, operate, and administer an industrial hemp licensing and registration program.” P.A. 641. But, Michigan cannot issue licenses or registrations until the USDA approves the program.
10.24.17
There are new laws regarding advertising that will apply to real estate salespersons and associate brokers beginning on January 1, 2018.
Real estate salespersons and associate brokers will be required to advertise under the supervision of and in the business name of employing brokers. Advertising that includes the name of associate brokers, salespersons, or cooperating groups of associate brokers/salespersons employed by the same broker must include both:
• the telephone number or street address of the employing broker; and
• the business name of the employing broker in a font that is equal or greater in size than the name of the associate broker, salesperson, or cooperating group.
This law applies to advertisements to buy, sell, exchange, rent, lease, or mortgage real property or a business opportunity.
There are two exceptions to this new law.
1.One exception applies to brokers. Licensed real estate brokers and associate real estate brokers may advertise real property that they personally own for sale or lease in their own name. They are not required to include the name of the real estate broker or the name of the real estate broker that employs the associate real estate broker in the advertisement. However, the advertisement must clearly indicate that the person who is selling or leasing the property is a licensed broker.
2.The second exception applies to salespersons who want to either sell or lease their property. First, salespersons who use property as a principal residence may advertise to sell it in their own name. Second, salespersons who own property may advertise to rent or lease it in their own name.