Changes in Federal Law May Impact CBD Product Advertising

For several years, some broadcasters have chosen to air advertisements for cannabidiol (or CBD) products, including beverages, creams, and edibles. CBD is a derivative of hemp, and many products containing it also include low concentrations of tetrahydrocannabinol (or THC), the active ingredient in marijuana. Marijuana remains illegal under federal law despite being a legal, regulated product in many states.

Since 2018, CBD products have been legal if they contain less than 0.3% of Delta-9 THC. The law, however, did not establish an aggregate THC limit for CBD products, which has led to substantial amounts of other natural and synthetic THC compounds being included that sometimes exceed the amount of CBD itself. This has led to more powerful psychoactive substances in the marketplace.

To address this issue, Congress passed a law last November that includes new restrictions on CBD products. They limit the overall amount of THC that these products may contain to 0.3%, establish a total weight limit for THC permitted to be sold in a single container (0.4 milligrams), and prohibit products containing synthetic substances not naturally produced by the cannabis plant. The new provisions are scheduled to become effective in November 2026. This may substantially reduce the number of legal CDB products, with the follow-on effect of reducing paid advertising for such products.

Three factors will dictate the extent of change in the marketplace. First, there are bills pending in Congress that would either repeal or delay for two years the changes made in 2025. Second, the FDA is required to complete rulemaking proceedings to establish greater clarity regarding how the new restrictions will apply, including how “container” will be defined for purposes of the total weight limit. Third, individual states continue to adopt separate restrictions on the sale of CDB products, including a New Jersey law effective in April 2026 that mirrors the federal law changes, and an Ohio law that bans the retail sale of “intoxicating” hemp products containing THC.

Before accepting advertising for a new product or service, broadcasters should confirm that the product is legally produced and lawful for sale, determine whether it is subject to any FDA, FTC, or state regulatory agency advisories, and where appropriate, obtain representations, warranties, and indemnifications from the advertiser to diminish risk. For CBD specifically, broadcasters should monitor the effective date of the changes in the law to confirm whether existing CBD products that may currently be advertised will remain legal after November 12, 2026.

For more information about CBD product advertising, contact David Burns in our Media Practice Group.