Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.

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.

What is CBD?

Cannabidiol (CBD) is a naturally occurring constituent of cannabis

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.

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.

It remains a marketer’s responsibility to establish which Regulatory regime applies to their individual product in order to establish if and how the product can be marketed.  The Regulatory regime to which a product belongs directly affects whether and which Section(s) of the CAP Code will apply.  

Is it a Controlled Substance?

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.  

Is it a Medicine?

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.

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.   

Marketers who do not currently hold a medicines licence for a CBD product should review MHRA Guidance Note 8 (‘a guide to what is a medicinal product’) for further information, paying particular attention to Appendix 10 which concentrates solely on CBD products.  If, having considered this in full, marketers are still unsure about the status of their product, the MHRA may be able to offer further advice.

If the product is not a licensed medicine, marketers should not make any medicinal claims in their ads.  The ASA and CAP considers that claims that a product can “cure”, “restore”, “prevent”, “avoid”, “fight” or “heal” (and similar) are likely to be considered as medicinal and advertisers of non-licensed CBD containing products should avoid making reference to them.

Is it a Novel Food?

CBD food products such as drops and gummies are considered Novel Foods, which must be authorised by the Food Standards Agency (FSA) before they are put on the market. You can find more information about the authorisation process here. For CBD products already on the market by 13 February 2020, an application needed to be made before 31 March 2021 and validated (or sufficiently progressing towards validation) by the FSA, in order to remain on the market (a list of such products can be found here). Applications made after 31 March 2021 must wait for full authorisation before being marketed. Marketers should not state or imply that their CBD food product has been approved or authorised by the FSA if it does not have full authorisation – as illustrated by this ASA ruling.

Is it a Food/Food Supplement?  

Oral CBD products are likely to be caught by the Regulation (EC) No 1924/2006 on Nutrition and Health Claims made on Foods (the EU Regulation) which is reflected in Section 15 of the CAP Code.

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.  

CAP understands that at the present time, there are no authorised claims for CBD on the EU Register.  Marketers are advised always to check the EU Register before making health claims for food products.  

See ‘Food: Health and Nutrition Overview, ‘Food: General Health Claims and ‘Food: Health Claims and other relevant ‘Food’ AdviceOnline entries for more detail.

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