The legality of ads for CBD products remains uncertain.

CBD oil sellers claim that there is no THC in their products – THC being the active ingredient in marijuana that makes it illegal. Federal law says that hemp products without THC can be sold in limited circumstances as approved by the states. But the FDA says every sample of CBD they tested had THC, and thus is still illegal under Federal law. The CBD companies are suing the FDA over their continued ban. That case has been fully briefed and argued, and a decision in court is expected very soon.

In addition, there is a bill pending in Congress that could make clear that CBD products with low THC are legal if legal in the state in which they are sold. The fact that Congress thought a bill was necessary suggests that existing law is not enough to claim CBD products are legal on a Federal level.

Stations should approach these ads with caution. With the broadcast license renewal cycle starting up soon, a broadcaster does not want anti-drug advocacy groups challenging a license renewal by arguing that the station is advertising a product that is illegal under Federal law. The costs of defending that kind of complaint could be significant.

We note that some CBD sellers are claiming that their products have no THC and thus should not fall within the FDA guidelines at all. Because there are arguments about these products on both sides and the legality is so muddled, and with the current litigation over their status pending, a station considering accepting such advertising should have its own legal counsel to fully analyze the risks of such advertising.