Portman Group’s advisory service issues guidance on CBD


INSIGHT
Published
Apr 21st '21
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CBD products are a fast-growing market in the food, beverage, and health industries. However, in the alcohol industry, this is still an emerging innovation and the Portman Group have therefore produced guidance to help the industry in marketing CBD infused alcohol products.

 

New guidance makes it clear that there is a distinction between cannabis and CBD. Cannabis is a controlled drug, and its use, growth and distribution are illegal in the UK.  In contrast to this, CBD is a legal cannabinoid in the UK.  Therefore, references to CBD will not necessarily breach the Code rule on illicit drugs.

 

The law on the use of CBD in food and drink products is complex and the Portman Group does not imply that the inclusion of CBD in alcoholic drinks is legally permitted.  We urge producers to seek legal advice before placing products containing CBD on the market.

 

Precedent

The Independent Complaints Panel recently ruled that a CBD infused product, Colorado High, breached the Code on two counts.

 

As part of the case, the Panel noted that the back label of the product stated ‘wellness-enhancing CBD’ and ‘Colorado High is a spirit that supports your body’s natural balance’.  The Panel was of the view that these statements did convey a health benefit.

 

In addition to this, after carefully considering the risk that consumers might infer therapeutic qualities from the descriptor ‘CBD Gin’, the Panel concluded on the basis of the evidence in this case that products containing CBD should name it as an ingredient but should not incorporate CBD into the name of the product, the product descriptor or feature it prominently on their packaging.

 

The Panel concluded that the description ‘CBD Gin’ on the front of the bottle, as well as the claims about wellbeing elsewhere on the packaging, breached Code Rule 3.2(j).

 

The Panel also noted that Colorado was one of the first states in the US to decriminalise recreational cannabis and that ‘high’ was commonly associated with drugs. The Panel considered that in this context these elements created an indirect association with illicit drugs and upheld the product under Code Rule 3.2(c).

 

CBD guidance

The guidance focuses on two main areas under the Code, but it is important to remember that the entirety of the Code will still apply.

 

Illicit drugs

Words and images associated with recreational cannabis are likely to create an association with illicit drugs and should be avoided.

 

If there is any claim, implied or explicit, for the effect of CBD (for example linked with a brand name) then this is likely to be found in breach of the Code.  This type of claim is problematic whether or not the claimed effect is likely to be achieved in practice.  For example, the ‘high’ in ‘Colorado High Gin’ was found to create an association with illicit drugs, even though CBD is not normally associated with a ‘high’.

 

Therapeutic qualities

Health claims should not be made on alcoholic drinks above 1.2% ABV.  We would advise producers to avoid any claims about health or mood change.

 

References to the taste and quality of a product are likely to be acceptable under the Code and we would encourage producers to focus on these elements when making emotive statements. For the avoidance of doubt, suggestions that a drink can invoke feelings, directly caused by consumption of the product, for example ‘chill out’, or ‘unwind’, are likely to be problematic.

 

The Portman Group do recognise that it may be necessary to inform consumers that a product contains CBD as an ingredient, but this must be done in a factual and ‘non-emotive’ way.  Any product which incorporates CBD into its marketing, such as the brand name, or product descriptor, is likely to breach the Code for suggesting an implicit health effect.

 

The Portman Group also have further guidance on both of the Codes of Practice and wider industry trends. To see the full suite, click here.

 

Source: Portman Group

 

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