As part of its ongoing efforts to ensure that dietary supplements and other health-related products are advertised truthfully, and that product efficacy claims made for such products are supported by competent and reliable scientific evidence, the Federal Trade Commission and the U.S. Food and Drug Administration has sent warning letters to three companies marketing products containing cannabidiol to treat and cure a variety of serious diseases and conditions.
The companies advertise a range of supplements they represent contain cannabidiol, such as “Hemp Oil,” “CBD Softgels,” “Liquid Gold Gummies” and “CBD Oil.”
According to the FTC, their advertisements suggest that the products can effectively treat diseases, including cancer, Alzheimer’s disease, fibromyalgia and “neuropsychiatric disorders. In addition, ads for products sold by one of the recipients allegedly claim that, “science also shows that CBD has anti-emetic, anti-convulsive, anti-inflammatory and analgesic properties,” and that, “CBD is a viable option for minimizing these effects within the brain.”
Other issues outlined in the letters also include, but are not limited to, unapproved new and misbranded human drug products, and unapproved new animal drugs.
The joint FTC advertising compliance and FDA letters warn the companies about the potential legal consequences of making unsupported health and efficacy claims in advertising, and strongly urge them to review all product claims they are making to ensure they are supported by competent and reliable scientific evidence.
“It is unlawful under the FTC Act, 15 U.S.C. § 41 et seq., to advertise that a product can prevent, treat, or cure human disease unless you possess competent and reliable scientific evidence, including, when appropriate, well-controlled human clinical studies, substantiating that the claims are true at the time they are made. See POM Wonderful LLC v. FTC, 777 F.3d 478, 504-05 (D.C. Cir. 2015); FTC v. Direct Mktg. Concepts, 569 F. Supp. 2d 285, 300, 303 (D. Mass. 2008), aff’d, 624 F.3d 1 (1st Cir. 2010); FTC v. Nat’l Urological Group, Inc., 645 F. Supp. 2d 1167, 1190, 1202 (N.D. Ga. 2008), aff’d, 356 Fed. Appx. 358 (11th Cir. 2009); FTC v. Natural Solution, Inc., No. CV 06-6112-JFW, 2007-2 Trade Cas. (CCH) P75, 866, 2007 U.S. Dist. LEXIS 60783, at *11-12 (C.D. Cal. Aug. 7, 2007). More generally, to make or exaggerate such claims, whether directly or indirectly, through the use of a product name, website name, metatags, or other means, without rigorous scientific evidence sufficient to substantiate the claims, violates the FTC Act. See Daniel Chapter One, FTC Dkt. No. 9239, 2009 WL 516000 at *17-19 (F.T.C. Dec. 24, 2009), aff’d, 405 Fed. Appx. 505 (D.C. Cir. 2010).”
Consult with an experienced FTC defense lawyer to ensure that express or implied efficacy claims are substantiated by competent and reliable scientific evidence. Violations of the FTC Act may result in legal action seeking a Federal District Court injunction or Administrative Cease and Desist Order. An order also may require that marketers pay back money to consumers.
Richard B. Newman is an Internet marketing attorney focusing on federal agency (FTC) litigation at Hinch Newman LLP.