Cannabis operators (from marijuana to hemp-derived products such as CBD) often get the sense they are one of the central targets of the federal government’s reach. But they are not in the same league lately as the COVID-19 virus. Earlier this month, those worlds collided.

The U.S. Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) jointly issued warning letters to companies that have claimed or implied that these companies’ products will cure, mitigate, treat, or prevent coronavirus disease 2019 (COVID-19). As the agencies made clear, no drugs containing CBD have been approved for the treatment or prevention of COVID-19. We have previously covered similar warning letters regarding marketing of CBD products (here and here). These warning letters are not limited to CBD companies, either; the FTC has previously issued similar warning letters in 2020 to companies for making similar claims regarding the ability of other products to treat or prevent COVID-19.

The agencies warned these companies that such representations are violations of the Federal Food, Drug, and Cosmetic Act (FDCA) and Federal Trade Commission Act, and demanded that these companies take immediate action to cease such representations as to their products. In one instance, the agencies noted that the company’s website contained a link to a 2021 study by the National Institute of Health stating that CBD “reverses many effects of COVID-19, preventing the infection from worsening and promoting future immunity;” a study by researchers at the University of Chicago showing “a significant negative association with positive COVID tests” for individuals taking CBD; and a study by the 2022 American Chemical Society and American Society of Pharmacognosy finding that CBD binds to spike proteins of COVID-19 and prevents the virus from entering cells and causing infection. After citing these studies published on the company’s website, the agencies demanded that this company “take immediate action to address the violations cited in [the] letter.” The agency letters serve as a stark reminder that companies should avoid marketing a substance’s purported health benefits or efficacy in treating or preventing disease, regardless of the evidence that may exist to support such a statement, unless that product has been approved, cleared, or authorized by the FDA for such purpose.

Photo of Whitt Steineker Whitt Steineker

As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients in a wide range of cannabis issues. In addition to providing a full suite of legal services to cannabis companies, Whitt and the Cannabis Industry team advise non-cannabis clients – from banks to…

As co-chair of Bradley’s Cannabis Industry team, Whitt represents clients in a wide range of cannabis issues. In addition to providing a full suite of legal services to cannabis companies, Whitt and the Cannabis Industry team advise non-cannabis clients – from banks to commercial real estate companies to insurance companies and high net worth individuals – on best practices for interacting with cannabis companies.

Whitt is one of the leading voices in the cannabis bar – recognized as a “Go-To Thought Leader” by the National Law Review. He has presented on cannabis issues at conferences around the country.  His work has been featured in the National Law JournalLaw360, and the Westlaw Journal. And he has been quoted in an array of legal and mainstream publications from Law360 and Super Lawyers to the Atlanta Journal-Constitution and the Associated Press.

Photo of Benjamin William Perry Benjamin William Perry

Ben Perry’s practice spans the spectrum of legal services. On the litigation side, Ben represents clients at the trial and appellate level against a wide variety of claims in state and federal courts. His practice primarily concentrates on complex civil litigation, products liability…

Ben Perry’s practice spans the spectrum of legal services. On the litigation side, Ben represents clients at the trial and appellate level against a wide variety of claims in state and federal courts. His practice primarily concentrates on complex civil litigation, products liability defense, and representing financial institutions and mortgage companies in civil litigation. As part of the Banking and Financial Services Practice Group, he defends mortgage servicers, investors, and related entities against numerous state and federal law claims arising out of lending and loan servicing practices, including alleged violations of the Telephone Consumer Protection Act (TCPA) and various claims relating to the sale of bank-owned real estate. Ben also has substantial experience defending banks and investors in hundreds of cases related to homeowner’s association (HOA) superpriority liens, and he has represented a company’s founder and CEO facing claims brought by the SEC for alleged embezzlement of company funds.