While a good many of these faux celebrity endorsement have come from scammers, a few have involved actual CBD companies.

Among the recent instances of celebrities publicly denouncing use of their likeness or phony endorsements for CBD products:

• Tom Brady. The pro-footballer has flatly denied his purported endorsement of CBD and keto gummies, as depicted in a number of approved Facebook ads – some of them sexually-explicit and clearly scams.
• Phil McGraw. The name and likeness of “Dr. Phil” was used by a scam website that led users to believe they were on the Fox News website, where there was an ad indicating his endorsement of CBD gummies. One article even stated McGraw and Brady were teaming up in their endorsement of CBD gummies. They had not.
• Dolly Parton. The 77-year-old country music singer/songwriter issued a statement saying that, contrary to circulated claims on various social media ads, she had never been associated with or endorsed any keto oils or CBD product.
• Keanu Reeves. “The Matrix” actor was compelled to release a statement last year clarifying that he had never endorsed any CBD gummy or CBD oil product, and had never been interviewed by any CBD company for its website.

Two recent cases that have led to litigation involved include “Jeopardy!” host Mayim Bialik and actor Clint Eastwood (and the company that owns the right to his likeness).

Bialik’s lawsuit lists 32 unnamed companies (identified by the IP addresses, mostly situated in the Dominican Republic, France, and India), and alleges they’re illegally using her likeness to promote fake CBD oil and CBD gummies. Bialik says she’s never endorsed the product, never given permission for her name/image to be used, and has never been compensated for its use by these operators.

Eastwood, meanwhile, has had two substantial successes on the legal front for illegal use of his likeness to sell CBD products. Both cases were initially filed in federal court in Los Angeles against three CBD manufacturers and marketers. The nonagenarian’s image was reportedly featured in online articles falsely claiming that he endorsed these products.

One of the companies, based in Lithuania, was ordered in 2021 to pay $6.1 million for unauthorized use of Eastwood’s name and likeness, as well as attorney’s fees. An injunction was imposed to block future use of his name and likeness for their products.

Then last year, Eastwood was awarded $2 million in a lawsuit against another CBD retailer and a Florida-based internet marketing service that purportedly used his name and image without permission to promote its products in an online magazine. That page contained an article his name and made-up quotes that indicated his support for CBD in general and the defendant’s products in particular.

Eastwood said he’s never endorsed cannabis, and in fact has only ever agreed to one endorsement in his whole career: A 2012 Super Bowl TV ad highlighting the nation’s economic gains since the previous recession.

Bottom line: Don’t make the mistake of thinking A-listers won’t notice if you swipe their likeness for online sales. It’s a high-risk move that could cost your company dearly. If you are seeking an endorsement of some kind from a celebrity, go through the proper channels, ensure they’re fairly compensated, and have your Los Angeles cannabis company attorney review your contract.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Clint Eastwood Wins $6.1 Million CBD Lawsuit, Oct. 3, 2021, by Sarah Bahr, The New York Times

More Blog Entries:

Breakdown of U.S. Rules for CBD Cosmetics by L.A. Cannabis Business Lawyer, April 16, 2023, Los Angeles CBD Lawyer Blog

The Modernization of Cosmetics Regulation Act of 2022 (better known as MOCRA), it’s the first time cosmetic rules have been updated by Congress through the Federal Food, Drug, & Cosmetics Act since it was passed in 1938. Other aspects of the law have been updated many times over as we’ve seen evolutions of technology, science, product safety, and responsible resourcing advocacy. Still, none of those expressly addressed makeup laws until MOCRA.

Prior to these changes, makeup companies didn’t legally have to test their products or the individual ingredients to ensure safety. Businesses didn’t have to register their production facilities with the FDA, abide by good manufacturing practice rules, or notify the government when there are adverse reactions (even life-threatening ones). Additionally, the FDA didn’t have the power to recall cosmetic products – even those that could be deadly. MOCRA rectifies all this and grants the FDA authority to oversee regulation of makeup products. (Small businesses may be exempt from certain requirements, depending on the specific circumstances.)

Cosmetics are defined not just as makeup, but those products intended for application to human bodies for cleaning, beautifying, altering appearance, or promoting attractiveness. Any product that promises to treat or prevent a condition or disease or alters some bodily function is classified as a “drug” by the FDA. It’s worth noting that CBD products can fall into both categories, but we’re specifically here just talking about CBD-infused cosmetics – though many do promise anti-inflammatory properties. These can include products like:

• Lip balm and lip gloss
• Moisturizers
• Under eye serums
• Hair creams
• Scalp oil
• Skin cleansers
• Face masks
• Deodorant
• Mouthwash
• Concealer/color corrector
• Mascara

What Does This Mean for CBD Cosmetics Companies?

Companies that produce makeup or other cosmetic products with CBD (hemp-derived) or other cannabinoids are now bound by MOCRA requirements with respect to the following practices:

• Product listing.
• Product registration.
• Facility registration.
• Good manufacturing practices.
• Record-keeping.
• Product recalls.
• Safety substantiation.
• Adverse event reporting to the government.

While states might have their own laws pertaining to cosmetics, MOCRA supersedes those.

It’s worth noting that federal prohibition on cannabis could make complying with certain provisions tricky. For example, if CBD cosmetic products are sourced from a larger cannabis producer, those facilities might not be able to be registered with the FDA due to marijuana’s ongoing classification as a Schedule I narcotic. That said, states are free to pass their own requirements for product and facility listing that align with MOCRA. We suggest companies consult with an attorney to ensure they are in compliance with the law.

As our Los Angeles CBD lawyers can explain, manufacturing CBD cosmetic products may ultimately be more expensive because they’ll have to acquire and maintain proof of their safety and ingredients. On the other hand, the ability to bolster consumer confidence in product safety is important for just about every product maker – particularly those in newer markets like CBD cosmetics. Beyond that, a “substantiated cosmetic use” for CBD products could go a long way in reducing the odds the FDA will object to these products – and possibly even reduce the risk of product liability litigation. It establishes a legitimate, legal reason for CBD to be included in makeup and cosmetic products.

Certain provisions of MOCRA don’t go into effect until the end of next year, and we expect there will be some state-level rules developed in the meantime.

If you have questions about how to make sure your production, record-keeping, registration, reporting, and sales of CBD products are aligned with state and federal rules, contact an experienced cannabis business lawyer for insight.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Modernization of Cosmetics Regulation Act of 2022, March 27, 2023, U.S. Food & Drug Administration

But what will it mean for the CBD side of things when/if marijuana products of all (or at least higher) THC levels becomes legal? Specifically, we’re talking about legalization of recreational marijuana. Here in California, as well as in 17 other states, Washington, D.C. and Guam, that’s already the reality. Yet CBD businesses continue not only to operate, but to thrive.

Our CBD business lawyers recognize the retail landscape may inevitably shift once recreational marijuana becomes legal, but we also believe in the strong likelihood the two can co-exist. Not everyone wants high-THC products – specifically in the realm of pet products, beauty topicals, and cosmetics. Plus, there are a fair number of people who aren’t heavy users of THC, but may still want to indulge occasionally in a way that is safe.

Recent analysis reveal that the legal recreational marijuana market dwarfs the CBD market – $50 billion to $8 billion. Still, neither sector’s size is anything to sneeze at.

In shops that sell high-THC cannabis products, CBD product sales have fallen in recent years (at least so far as California goes). But it’s our theory that when adult use recreational marijuana becomes legal, there will be an increase in sales for both – particularly in mature markets.

The question is how the merge will occur: Will we be more likely to see low-THC products in marijuana stores primarily selling high-THC products – or visa versa. Even if high-THC retailers are the ones to thrive, it’s likely to be CBD retailers who excel in digital sales.

Beyond this: What will be the role of any dispensary when/if marijuana becomes legal at the federal level? Would anyone go to a dispensary if they could purchase quality CBD or cannabis at a gas station? It’s true that cannabis-specific retailing is hyper-centralized as a result of regulation, but our thinking is that there would still be a need for CBD and cannabis dispensaries – just as sales of alcohol have continued at liquor stores and wineries.

Cannabis companies of all stripes may want to start thinking of ways to protect their future by investing in brand development. This approach would include:

• Diversifying product offerings.
• Carving a name for yourself in the customer service sphere.
• Providing valuable education to new and existing customers.
• Offer a premium quality product.

Think about it like pizza. It’s easy enough to make, and you can find a pizza joint in virtually any city in America – not to mention in the grocer’s freezer section. But quality pizza? Wood-fired pizza? Premium ingredients? An Italian dining experience? These are all things that people seek out – and it’s how some restaurants have managed to differentiate themselves, even in crowded markets. You build up your brand value, brand loyalty, and brand base. This is true for both CBD and high-THC retailers.

Every step of the way, it will be crucial for companies to consider the legality of their branding, their business practices, and their growth. Our dedicated Los Angeles CBD lawyers are here to help.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

As more states legalize marijuana, CBD retailers face an identity crisis, April 29, 2022, By Kristen Nichols, Hemp Editor, Marijuana Business Daily

Although states weren’t given a strict deadline for submission of their own plans, it was noted in USDA interim rules that previous federal statute governing cultivation of hemp (the 2014 Farm Bill) expires at the end of October. That means hemp industry insiders in states that don’t turn in their hemp cultivation and production plans prior to Oct. 31, 2020 may have issues if their practices are not consistent with federal law.

As a longtime Los Angeles CBD lawyer, I have been closely watching these developments in California. In 2019, state lawmakers passed SB-153, a measure that required the state’s attorney general and department of food and agriculture to team up and put forth a hemp production plan to the federal agriculture department by no later than May 2020. However, that did not happen. According to the USDA, the feds are still waiting on California’s plan.

The California Department of Food and Agriculture reports that the state is “in the process of developing a state plan.” The agency further asserts that for this reason,growers of hemp in California aren’t subject to federal hemp-growing rules. However, hemp growers in states that don’t have a regulatory plan that has been approved or is pending can apply for a hemp production license from the USADA. The state department says that while its regulatory plan for hemp growing and production was finished prior to the May deadline, the law necessitates it be submitted, reviewed and approved by both the state attorney general’s office and the governor’s office. That is what the agency’s waiting on right now, and the plan has (understandably) been dealing with much else in the midst of the pandemic.

That sort of leaves the state’s hemp industry in limbo. When the 2014 Farm Bill expires, hemp cultivators in California may need to apply for federal licensing. Consulting with an experienced Los Angeles hemp cultivation attorney is a smart idea to ensure you are ahead of the curve no matter how this unfolds. It should be noted that regardless of any federal requirements, all hemp growers in this state must comply with existing California laws and regulations, as well as any applicable local restrictions.

Currently, there are no state law restrictions specific to the importation of industrial hemp seeds and plants into the state, though imports may be subject to agricultural inspection. However, if you’re importing seeds internationally, that is restricted by the USDA’s list of requirements.

As far as transport of hemp, oil, seed, fiber, cake or any compound of hemp, registrants should have ready an original report of the lab testing. Drivers are also subject to local law enforcement and state DMV rules.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

California Industrial Hemp Program, FAQ, California Department of Food and Agriculture

Last summer, the Orange County Health Department began paying visits to coffee shops, bars and cafes, seizing CBD-laced food and warning the company to stop using illegal cannabis or else pay a fine. The Orange County Register reported the new rules were causing a major shift in the trend of widespread use of CBD oil. The rules impacted many L.A. restaurants and bars that were beginning to rely on sales from CBD cocktail and/or supplement. Some businesses reported CBD-laced products account for 30 percent of their business.

Last week, Florida’s new Secretary of Agriculture – who ran partially on increasing access to medical marijuana – recently made a public statement asserting CBD is not legal to sell in Florida. There is, however, a pending bill in the state legislature that proposes a state regulatory framework for cultivation of hemp and quality control for CBD. Mandatory testing and FDA approval would all be part of that, but so far, that measure has not passed.

While hemp, the non-psychoactive cousin of cannabis from which CBD (or cannabidiol) is derived, was all but declared legal by the 2018 Farm Bill, CBD remains something of a legal gray area. Although the FDA has approved use of CBD for conditions like epilepsy and seizures, proponents of CBD say it can help calm anxiety, help individuals relax and help dull chronic pain.

In New York City, one local bakery owner told the Daily News she was surprised when health inspectors entered the shop she owns with her husband and started bagging up the CBD-laced rice crispy squares and cookies – products she’d had on her shelf during previous inspections that never caused more than a second look. In a prepared statement, the state health department indicated that while CBD is legal in New York, it has not formally been approved for use in food or drink by the FDA. Until it is deemed safe for the public as a food additive, the department is instructing restaurants not to sell products that contain the substance. In other words – you can consume a drop of CBD oil on your tongue administered to yourself, but you aren’t allowed to put it on a brownie and eat it.

The oil had come to be a common ingredient on menus – everything from lattes to cocktails. Now, at least five restaurants in the city have been expressly told to stop selling CBD-containing products. The city said it was in the process of informing more restaurant owners of the fact that they can’t include it in edibles. There will be a grace period that will probably end around late summer or early fall.

Most states that offer legal marijuana don’t give any health and safety guidance for the budding industry. Businesses currently selling CBD products in Los Angeles should consult right away with an experienced Los Angeles marijuana attorney.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

LA Restaurants Could Get In Trouble For Serving CBD-Infused Food and Drinks, July 25, 2018, By Mona Homes, LA Eater

The FDA Lays Out How It Intends to Crack Down on CBD in NYC, Feb. 22, 2019, By Helen Holmes, Observer

More Blog Entries:

Cannabis Copyright in California: Protecting Your Budding Brand, Feb. 12, 2019, Los Angeles Marijuana Lawyer Blog