CBD Is Legal. Talking About It Isn’t.
How Regulators Control What You Hear About CBD
The Double Standard
In America, an individual can say that CBD helped their anxiety, arthritis, migraines, insomnia, or almost anything else they sincerely believe happened to them. But when a wellness company publishes that same testimonial, the rules change.
The same is true of scientific research. Researchers can study CBD, journalists can report on those studies, and consumers can discuss what they believe CBD did for them. But when a company that sells CBD participates in the same conversation, regulators apply a different set of rules.
Some of that makes sense. Companies shouldn't be allowed to disguise advertising as education or use customer testimonials to make claims they couldn't legally make themselves.
The problem is that the boundary between education and advertising is intentionally ambiguous. Regulators don't merely consider what a company actually says. They consider what its words might imply, what consumers might infer, and how those statements might relate to the products sold by the company even if any relationship was unintentional.
That creates a pernicious double standard. CBD companies can be held responsible not only for what they say, but for claims made by their customers and implications perceived by regulators. The effect is predictable.
Responsible companies learn to be afraid of saying much of anything. Many large CBD companies maintain extensive “educational” blogs filled with vacant wellness language, legal qualifications, and articles engineered to satisfy search engines and lawyers rather than their own customers. Meanwhile, the least responsible sellers simply ignore the rules and promise whatever they think will sell another bottle. The result is a completely deranged information environment.
The established companies selling CBD hear thousands of customer experiences over years of business. They see which questions recur, which products people continue buying, and where real-world experience agrees and conflicts with published research.
That experience is not clinical evidence, and it shouldn't be presented as if it were. But it is information. And our regulatory system gives the people closest to that information some of the strongest incentives not to talk about it.
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Authenticity Is Punished
The FTC does not give businesses a simple list of things they can and cannot say. Instead, we get a slurry of interpretations, examples, enforcement actions, and “guidance” issued piecemeal over years and told to consider what our words might imply.
The rules change constantly. The FTC now distinguishes between merely hosting customer reviews and using those reviews as advertising but even that creates ambiguity.
Suppose a website automatically displays customer reviews from across the site on its homepage. Is it merely hosting customer reviews or advertising testimonials? I don't know. You don't know. We may not find out until the FTC takes an enforcement action against another business—and that's the problem.
But something even stranger happens once regulators decide that review has become advertising.
A customer says: “This helped me with insomnia.” That's a claim about one person's experience.
The regulator then asks the company: “Show us scientific evidence that your product is generally effective for insomnia.” That's a much broader claim.
The customer's story could be completely authentic. The company could accurately reproduce every word. But authenticity isn't enough because regulators have transformed an individual observation into a general claim about efficacy—and now demand the evidence necessary to support that claim.
That's why you will never hear some of the most interesting customer experiences with CBD.
Education Is Punished
Scientific research creates a similar problem. Researchers investigate, journalists report, people discuss the findings. But when a company that sells CBD discusses the same research, the FDA can interpret that discussion as evidence that the company intends its products to be used as unapproved therapeutic drugs—and take enforcement action on that basis.
This isn't hypothetical. In 2023, the FDA sent a warning letter to East Fork Cultivars citing articles published on the company's educational blog. The articles discussed the entourage effect and research involving pain, inflammation, cancer, COVID-19, and epilepsy. The FDA interpreted statements from those articles as evidence establishing the “intended use” of East Fork's CBD products as drugs.
Think about the transformation that just occurred. The article says: “This is what the research found.” The regulator interprets: “This is what you intend your products to be used for.” Those are not the same statement.
The FDA doesn't give us a bright line where legitimate education ends and drug marketing begins. This is one reason so many corporate wellness blogs are choked with disclaimers and legal jargon.
“THIS PRODUCT IS NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY ILLNESS, DISEASE, OR INJURY.”
When honest scientific discussion can acquire an entirely different regulatory interpretation based on the perceived motivations of the people publishing it, responsible companies have a powerful incentive to say as little as possible.
The research hasn't changed. The words haven't changed. The regulator changed what the words mean.
Ambiguity Is Power
In ordinary conversation, the speaker usually gets to explain what they meant. Under advertising law, what a company actually intended to communicate isn't what regulators are evaluating. Regulators instead ask what a reasonable consumer might have understood and hold companies responsible for that hypothetical interpretation without even demonstrating that any particular person actually understood it that way.
For a CBD company, that creates a particularly strange problem. If regulators perceive a connection between education and selling products, perfectly truthful information can acquire a regulatory meaning its author never intended.
When a company receives an enforcement letter from regulators the process that follows is the punishment itself. Lawyers get involved. Content comes down. Business practices change. The process can impose costs long before a court ever decides who was right.
This isn't the only time regulators have tried to manage how speech is interpreted.
In 1985, Twisted Sister frontman Dee Snider was called to testify before a U.S. Senate committee during hearings over efforts to label supposedly objectionable music. Tipper Gore had interpreted the song Under the Blade as containing sadomasochistic themes.
Snider told the committee that the song was actually about surgery and the fear it inspires. Then he delivered what should have been a career-ending blow for a moral busibody like Tipper Gore:
“The only sadomasochism, bondage, and rape in this song is in the mind of Ms. Gore.”
Snider's point wasn't that the listener couldn't interpret his song differently. It was that her interpretation existed in her mind, not in his words.
Commercial advertising doesn't receive the same constitutional protection as music, and companies can reasonably be held responsible for misleading implications in their advertising. But regulators should have something more substantial to go on than their own interpretation of what a hypothetical consumer might have inferred.
Once government regulation depends substantially on what speech might imply rather than merely what it explicitly says, ambiguity becomes power.
When You’re Right… You’re Right
Buried in a 14,000-word, 45-page document (not including footnotes and citations) called the Health Products Compliance Guidance, ostensibly intended to offer clarity to business owners, is a remarkably sensible observation. They acknowledge that the cost of substantiating truthful information could become prohibitive.
This document describes express claims, implied claims, net impressions, disclosures, testimonials, scientific substantiation, emerging research, and example after example of what regulators believe consumers might infer.
Regulators are instructed to consider both the value of truthful information and the cost of proving it so that “valuable product information isn't withheld from consumers because the cost of developing substantiation is prohibitive.”
In other words, "Don't make telling the truth so damn expensive or bad things will happen."
When you're right, you're right. This is a substantial understatement if you ask me.
We wouldn't want to impose a prohibitive cost, so just read all 45 pages, correctly anticipate every possible implication of your words, and hope the regulators agree. But keep in mind, this guidance does not have the force or effect of law. It provides no safe harbor. Whether a business is in compliance still depends on how someone else interprets what they said.
That's a remarkable compliance burden for a small business trying to tell people the truth. The FTC is correct that valuable information shouldn't be withheld from consumers simply because proving every implication is prohibitively expensive. But that is exactly the incentive this system creates.
Key Takeaways
What We Know
The FTC and FDA can regulate claims based not only on what a company explicitly says, but on what regulators believe its words imply.
What the Evidence Suggests
Responsible companies have a powerful incentive to say less, because truthful customer experiences and legitimate scientific discussion can acquire regulatory meanings the company never explicitly stated.
What We Don't Know
Whether a review is a testimonial, when education becomes advertising, where legitimate scientific discussion becomes evidence of intended use, what a hypothetical “reasonable consumer” might infer, or how some pencil-neck at the bureau will interpret our words.
What This Doesn't Establish
The evidence and retailer experiences discussed here do not establish that any product sold by Herbal Edge is intended to DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE, OR INJURY.
