Should Michigan Broadcasters accept advertising for CBD products?
By: John J. Ronayne III, Bernardi, Ronayne & Glusac
MAB Michigan Legal Attorney
The short answer is probably “no.”
First, a little chemistry. CBD is a shorthand term for cannabidiol, which can be extracted from various strains of the Cannabis sativa plant. The more notorious extract of Cannabis sativa is tetrahydrocannabinol, or THC. THC is the psychoactive chemical commonly associated with a marijuana high. There are two well-known strains of Cannabis sativa, marijuana and hemp. Hemp has a significantly lower concentration of THC.
The emergence of CBD advertising opportunities for Michigan Broadcasters is the result of Michigan’s original legalization of medical marijuana, and its more recent legalization of recreational marijuana. These developments in state law, however, are not the panacea that they might first appear to be. Federal laws on this subject remain in effect.They are unaffected by Michigan law and are markedly more restrictive than Michigan law. Under federal law, marijuana is a Schedule I controlled substance.
Recall that CBD can be derived from either marijuana or hemp. If derived from marijuana, CBD is clearly illegal under federal law. Those who advertise it do so at risk of a federal felony. If the CBD is derived from hemp, the result is arguably quite different. In light of its commercial uses and markedly lower concentrations of THC, hemp was removed from Schedule I by the 2018 Agriculture Improvement Act. Thus, CBD which has been extracted from legally-produced hemp is legal under federal law. Notice the phrase “ legally produced.”
The recent legalization of hemp contemplates fairly elaborate government regulation. That is only now in the process of of being implemented. At least one goal of the regulatory effort is to insure that the hemp being produced for commercial purposes contains no more than the .3% legal limit of THC. In any event, the chances that any of the currently available CBD products were derived from “legally produced” hemp are remote. In consequence, it is highly likely that any CBD products currently being offered are marijuana-derived and the sale or advertising of them is a violation of federal law.
In addition, the Food and Drug Administration has made it clear in a public statement that it prohibits the sale of CBD products for human consumption.
Now the last twist. CBD is now a prescription drug. Last June the government approved an epilepsy drug, Epidiolex, the main ingredient of which is CBD. A federal law prohibits the use of such medicines in food and drink products. Relying on this law, local authorities have been citing restaurants and bars that feature CBD on their menus (WSJ, 3/29/19).
The current CBD landscape is unclear, and there is nothing that would cause a change in prior guidance. While awaiting further developments, the current recommendation is that the advertising of CBD products exposes Michigan broadcasters to significant risk.