Updated: Apr 12
Everyone who knows me is aware of my love of reading warning letters. Gaining insight into enforcement trends can help protect companies from costly regulatory mistakes such as warning letters, administrative action, or even class-action lawsuits (Made in the USA, Natural, THC-Free, Prop 65).
Many warning letter recipients are not bad folks but perhaps just do not know any better. One of the purposes of my free Regulatory Education Series is to educate those looking to raise the bar of ethics and compliance in the industry. Please share this blog or any of my content (with attribution) if it may be of value to your network. We are stronger together!
We are going to have fun reviewing this Cannafyl warning letter which can work as a teaching case to help you understand what the FDA is enforcing. Here are a few learning topics:
Social media is advertising
COVID-19 implied claims
Hashtags are claims such as #cbdforhypertension
Reasons to clean up old social media posts
Blog are claims
Sublingual claims = drug delivery
Quotes from the FDA warning letter are in grey.
We have also reviewed your social media websites
Social media is referenced in nearly every warning letter. Anything used to market is looked at as an extension of the product label and must be truthful and not misleading.
these websites direct consumers to your website https://cannafyl.com to purchase your products.
This “material connection” aspect is important to note. This is how the FDA links disease claims to commerce. I ask “If there was no linking to a company shopping cart, would these have been noted in the warning letter”.
Dietary Supplement Labeling
FDA's boilerplate comments are referenced in CBD warning letters. I will say hemp cannabinoids are not going away and mature companies are looking for ways to comply.
Since the FDA regulates based on intended product use is it most ethical and accurate to label ingestible hemp products as supplements? We discuss this here.
There is a conundrum when we look at state CBD product registration, as many states require Supplement on the label. The obtuse example here is Louisiana which requires Product Facts to be listed in place of the word Supplement. This is a made-up category that, in my opinion, is a disservice to the industry. This can precipitate private companies like the credit card authorization Square requiring companies to remove Supplement from product labels. What are your thoughts truthful on hemp product labeling?
On your website homepage ….“CBD MAY HELP YOU WITH . . . Epilepsy[,] Multiple Sclerosis (MS)[,] Amyotrophic Lateral Sclerosis (ALS)[,] Parkinson’s[,] Inflammation[,] Dementia[,] Depression[,] Bacterial Infections[,] Diabetes[,] Rheumatoid Arthritis[,] Substance Abuse/Withdrawal[,] Heart Disease[,] Irritable Bowel Syndrome (IBS) . . . ADHD[,] Schizophrenia”
Including the word May does not allow companies to make claims. I moderated an AHPA regulatory panel with a top FTC official. He would say “Asa, why is this company making this statement if not to sell products”. This is the lens the FTC and FDA look at marketing statements. I often use this example when educating about how “informational” blogs can easily cross the line into claims.
On your website …. October 10, 2020 blog posting titled “CBD for Breast Cancer”:
· “How CBD helps manage Cancer Growth . . . One of the many reasons Cannafyl decided to make a full spectrum CBD product is the research shown that having all of the cannabinoids working together synergistically provides that extra component that cancer patients fear the most, will my cancer return? Here are a few of the cannabinoids in a full spectrum CBD that are working overtime to inhibit cancer cell growth: CBD: Inhibits Tumor Cell Growth and Cancer Growth[,] CBG: Inhibits Cancer Growth[,] CBGv: Kills Cancer Cells[,] CBC: Inhibits Tumor Cells and Cancer Growth[,] THCa: Inhibits Cancer Cells”
This is a clear product cancer claim and is extremely high risk. I am asked whether “helps manage” or “may help support” lessens the risk of making claims. The answer is no, as a reasonable consumer would interpret this as a product claim.
I have developed a risk-rating system on a scale of 1-5. Here are some examples of words in the 5 of 5 risk category: cancer, COVID, Alzheimer’s, Depression, PTSD and should never be used.
On your website https://cannafyl.com/blog/cbd-for-opioid-addiction-withdrawal/: August 21, 2020 blog posting titled Can CBD Help with Opioid Addiction and Withdrawals?”:
· “Can CBD Help Treat Opioid Addiction?” In particular, CBD has been shown to aid in the reduction of drug-seeking behavior. Because CBD may provide relief for a cross-section of symptoms – like . . . mood or anxiety disorders . . . CBD Solutions to Opioid Addiction[,] CBD has been shown to reduce anxiety and control cravings for opioids. . . . Studies have shown CBD may help reduce cravings and reduce opioid withdrawal symptoms. . . . This is why we have decided to create the Cannafyl Relief blend for those who are going through withdrawal symptoms.”
Reasons to follow warning letter trends. Anyone who reads my blog or pays attention to FDA enforcement trends knows that marketing to those suffering from opioid withdrawal is a no-no. We discuss examples here.
We also see anxiety (3.5 of 5 risk rating) showing up in more warning letters. Read about this here.
On your website https://cannafyl.com/blog/researchers-explore-how-cbd-might-positively-affect-covid-19/: August 12, 2020 blog posting titled “Researchers Explore how CBD Might Positively Affect COVID-19”:
· “While researchers continue to explore several ways to fight against COVID-19, some are diving a little deeper to see if cannabis derived CBD could possibly benefit those that are suffering from severe forms of this infection. Further research has suggested that CBD is perhaps able to reduce the angiotensin-converting enzyme 2 (ACE2) expression, which is used as a cell receptor to invade human cells. . . . At Cannafyl we formulated a full-spectrum CBD infused with natural terpenes and essential oils giving you all the health benefits that a CBD product can provide, and the great news is you don’t need that much CBD to receive all of the health benefits. This is why we decided to create the Cannafyl Balance blend for your every day [sic] needs.
The words “could possibly benefit” do not allow a company to make COVID implied claims. Use of "buzzword" Coronavirus. This carries a risk factor of 5 of 5 (Asa's rating system) Here's our webinar on this.
Implying the product will be useful for coronavirus symptoms is a bad idea. In the eyes of the FDA/FTC, this may suggest the consumer doesn't need to take preventative action (e.g. masks, hand washing). This is at the core of most COVID warning letters.
On your Facebook social media website at www.facebook.com/cannafyl: November 15, 2020 posting:
· “CBD FOR HYPERTENSION? Check out this informative article that looks into the benefits of CBD on wellness. https://cannafyl.com/blog/cbd-oil-for-blood-pressure/ #cannafylcbd . . . #cbdforhypertension . . . #hypertension #highbloodpressure . . ..”
I caution against companies sharing articles in high-risk areas, as the line between education and advertising is very thin. Remember the FTC official saying “Why is this company sharing this content if not to sell products”. The risk associated with posting this article is elevated with these hashtags. High-risk hashtags are the quickest way to wave a red flag at the FDA asking for attention.
When the company lists #cannafylcbd it is clear they are implying their product is marketed for these diseases. This is a good example of a company pushing out content without having a compliance review. I review this and more in this Hiring Supplement Experts for Rapid Company Growth blog post.
On your Twitter and Facebook social media websites at https://twitter.com/cannafyl and https://facebook.com/Cannafyl/, respectively, November 17, 2020 postings:
· “I am so glad I found Cannafyl for Pets. I have a puppy at heart (13yr senior chi/mix). Being a small dog she is more prone to arthritis, disk degenerative disease… and luxating patella… Once we got her started on the guided regime within a few weeks we were seeing improvement in her… pain management…”
Reposting or using customer testimonials to sell products is considered marketing, and therefore should not contain claims. Testimonials and product reviews are commonly overlooked.
I suggest training your social media staff on the dos and don’ts of testimonials and reviews.
I strongly suggest cleaning up old non-compliant social media posts as they can only cause problems. Some warning letters have referenced two-year-old posts! Read about this in my Operation CBDeceit blog.
We also note that the labeling for your “Balance CBD Drops,” “Relief CBD Drops,” and “Relax CBD Drops” recommends sublingual administration (under the tongue). The FD&C Act defines the term “dietary supplement” in section 201(ff)(2)(A)(i) of the FD&C Act as a product that is “intended for ingestion.” Because sublingual products are intended to enter the body directly through mucosal tissues, they are not intended for ingestion.
Taking a product under the tongue is a sublingual (drug delivery) claim. I am curious if the directions included “before swallowing” is still considered a sublingual claim. What are your thoughts?
I am surprised to find there are still claims on the company website. I immediately noticed seemingly inaccurate Made in the USA statements and customer testimonials which are ripe with claims such as “after using …Pain Salve, my pain level has been greatly reduced.”
These can spark plaintiff lawsuits or even follow-up warning letters. Repeat warning letters can lead to serious action such as injunctions. (FDA press release)
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Disclaimer: The educational information provided on this website is for informational purposes only. Contact an attorney for specific legal advice.