2023, The Year Of CBD?

Important legal updates on hemp and CBD.

4983802022 ended with two interesting developments for the hemp industry.

Google Ads Policy Update 

In December, Google Ads announced that as of January 20, 2023, the company will relax its advertising policies and allow the promotion of cannabidiol (“CBD”)-infused topicals containing no more than 0.3% tetrahydrocannabinol (“THC”) in California, Colorado, and Puerto Rico. As I have discussed in this column, the marketing of topicals, specifically cosmetics, is generally less risky and more tolerated by the FDA and the FTC.

Only topical CBD products that have been certified by LegitScript, a Portland, Oregon-based internet and payments compliance company that provides, among other things, certification in high-risk industries, will be allowed.

To be certified for advertising, companies will have to provide a copy of their certificate of analysis along with samples of their product to be tested.

In addition to the geographical restrictions, ad promotions of these certified products will be limited to users identified as 18 or older and will be excluded from certain formats such as YouTube Masthead.

Although CBD-infused food products, dietary supplements, and inhalants will remain prohibited by Google Ads, this recent marketing development is a small breakthrough for CBD companies, which have been hit with suspensions, deletions, and warnings for advertising their products online. You can read more on this issue in this article.

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Not only will this policy update afford CBD companies an opportunity to connect with consumers and expand their market reach in the three permitted jurisdictions, it will also provide consumers with assurance that these products have been thoroughly vetted.

FDA Regulatory Assessment

On December 29, 2022, the Wall Street Journal published an interview with the FDA in which the agency announced being just months away from releasing a regulatory assessment for hemp-derived products, including CBD.

This is big news given that, for the past four years, the FDA has been reluctant to develop a regulatory pathway for the manufacture, sale, and marketing of CBD products. Despite acknowledging the growing public interest in CBD products, the agency has consistently maintained that more robust information about the potential safety problems or adverse effects associated with CBD and other cannabis-derived products had to be done before the agency could develop regulations for hemp-derived products.

In the WSJ interview, three FDA officials leading the agency’s cannabis regulation efforts discussed their plan for these products: “[T]he FDA will decide within months how legal cannabis should best be regulated and whether that will require new agency rules or new legislation from Congress.”

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However, before it proceeds with its assessment, the FDA first needs to review the available data. This data includes scientific evidence submitted via the FDA’s public docket as well as pilot initiatives and partnerships focused on advancing data-driven safety signal detection, and building advanced technology capabilities developed through the Agency’s Cannabis-Derived Product Data Acceleration Plan (“DAP”).

The FDA officials also shared being concerned about whether the existing regulatory pathways for food and dietary supplements are appropriate for CBD. This comment suggests that the agency may ultimately decide not to regulate these products in the same manner as states that have adopted a legal framework for these products and might instead regulate them as drug products or under a new product category.

If the agency ultimately decides to deviate from the existing state regulations and to regulate these products as drugs or as a separate product category, the matching rules will inevitably further disrupt the CBD industry. Not only will these companies be forced, once again, to deploy huge financial resources to adjust and comply with these new rules, they will also be faced with greater competition, like pharmaceutical companies, that is eager to get a slice of the CBD pie.

So, whether this latest FDA development is a good omen for the industry, is anyone’s guess at this point.


nathalie bougenies headshotNathalie Bougenies focuses her practice on health and wellness, in addition to corporate transactions and regulatory compliance. For the past four years, Nathalie has helped clients navigate the complex regulatory landscape of hemp products intended for human consumption and advises domestic and international clients on the sale, distribution, marketing, labeling, and importation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s “Marketplace.” She also authors a weekly column for “Above the Law” that features content on cannabis policy and regulation. For four consecutive years, Nathalie has been named Rising Star by Super Lawyers.