Brands who don’t want to fall afoul of Federal Communications Commission, CAN-SPAM, and Telephone Consumer Protection Act regulations should strip all references to CBD and cannabis from their text messages, implement a double opt-in and STOP-to-opt-out option for subscribers, and remember to block any outgoing campaigns to states where cannabis isn’t legal. As with PPC advertising, a potential work-around is to link to a site that has been stripped of cannabis-related content, but many will find that this rather neuters the quick and frictionless nature of SMS in the first place.
The most successful brands will either focus on the lifestyle and well-being aspects of CBD rather than its sale or will work with influencers to create educational content that evades the ban. Others will take a craftier approach and scrub a second domain of all references to CBD, which can link to the sales page once Facebook approves the ads.
Facebook has lifted its initial blanket ban and will now (in theory) allow ads for CBD topicals but not ingestibles. Bear in mind, however, that Facebook crawlers will also search the domain and can block ads that link to pages promoting the sale of ingestible CBD products.
2 – Affiliate Marketing
No joy here either. Google does not allow ads that promote the use or sale of cannabis, CBD, or hemp. To circumvent this rule, brands should focus on educational content that draws visitors to a landing page in the same spirit. At this point, the brand can then be retargeted with ads or emails that link to a sales page. Except yet again, there is an obstacle to overcome here too.
It doesn’t help either that the Food and Drug Administration has yet to approve any product containing CBD other than Epidiolex. As a result, CBD brands are prohibited from making any medical claims about the effectiveness of their products, even when supported by anecdotal reviews or peer-reviewed studies.
New Challenges for SMS Retargeting
But these only go so far. While effective, these channels are becoming saturated, and brands are missing out on the growth-accelerating power of paid acquisition, leaving a booming industry to wonder: Where can you advertise a CBD brand?
Although it is possible to post organic CBD content on both Facebook and Instagram, neither platform will allow any ads that feature references to CBD, cannabis, marijuana, or hemp. Remove any explicit references to these and there is a chance that your ad will be approved, but even then, it is not uncommon for Facebook to reject campaigns that comply with its policies.
Among other things, only specific health claims listed as authorised in the EU Register can be used in ads for foods, and only if the product can satisfy the conditions of use. General health claims, must be accompanied by a relevant specific authorised health claim.
BREXIT – The CAP and BCAP Codes include many rules which seek to reflect significant pieces of EU law or UK law that has been made to implement EU law. As far as CAP is aware, the same rules and laws will apply on the day after exit as on the day before. This CAP News Article explains the position further.
The Medicines and Healthcare products Regulatory Agency (MHRA) has taken the positon that CDB containing products which are taken for a medicinal purpose should be treated as medicines and would need to be licensed as such. Ads which present CBD products as medicines or as having a medicinal effect therefore trigger the need for those products to be licensed as medicines.
Novel Foods Regulations relate to some food products and supplements and CAP understands that risk assessments and authorisations are required before those foods can be sold. Oral CBD containing products are likely classed as a ‘Novel Food’ under the EU Regulation (EU) 2015/2283 on Novel Foods. Marketers looking for more guidance on this should consider this Novel Foods guidance and this CBD Products linked to CBD guidance from the Food Standards Agency (FSA) and contact them if unsure of the status of their product.
Is it a Novel Food?
The Regulatory definition of CBD products is complex and may depend on a number of factors. This means there isn’t a ‘one size fits all’ definition that can be applied across all CBD containing products. However, CAP understands that CBD containing products which are taken orally tend to either be defined as Medicines or as Foods, both of which are covered by complex Regulatory regimes.
Media coverage and social media interest in CBD containing products has increased in recent years, resulting in a significant uplift in consumer awareness and interest in this type of product. This could be primarily due to its purported health or medicinal benefits. CAP understands that there are a variety of CBD containing products on the market and that most of them are taken orally (as drops, capsules or tablets etc.). We also understand that some CBD products also contain other ingredients.
It is possible that some CBD containing products may also contain trace levels of Tetrahydrocannabinol (THC), and/or other controlled substances. Marketers are advised to read this factsheet which has been produced by the Home Office and seeking specialist legal advice before taking any further steps to bring a CBD product to market.
What is CBD?
CAP understands that the MHRA is considering emerging evidence of a clinical effect of CBD and therefore cannot rule out the possibility that CBD products that are currently on the market could be re-classified as medicines in the future.
Cannabidiol (CBD) is a naturally occurring constituent of cannabis