CBD and alcohol: How should brands navigate this tricky space?
Any references to CBD should be done in a factual and ‘non-emotive’ way, adds the group – ultimately urging producers to seek legal advice before placing products with CBD on the market.
Meanwhile, any words or images which make reference to recreational cannabis (which is illegal) should be avoided; as should also claims about health or mood change.
With the CBD market evolving with more and more entrants, the Portman Group, the alcohol industry’s self-regulator, has set out its guidance on marketing the cannabinoid. However, the law around such products is complex – and likely to be even more so when considered with alcohol – while the Portman Group itself has an advisory rather than legal weight in determining which products are acceptable.
References to cannabis? No
CBD products are a fast-growing market in F&B. While less common, CBD alcohol products are also emerging.
In January 2019, CBD products were accorded novel food status in the UK. However, the law on the use of CBD in food and drink products is complex and the Portman Group takes the stance that, by issuing guidance, this ‘does not imply that the inclusion of CBD in alcoholic drinks is legally permitted’ - urging producers to seek legal advice before placing CBD drinks on the market.
It is important, notes the Portman Group, to make the distinction between CBD and cannabis. Given that cannabis is illegal, any words or imagery that create an association between cannabis and CBD should be avoided. This could include pictures of distinctively shaped cannabis leaves or packaging with a hallucinogenic look.
“For instance, if a CBD product includes images of marijuana leaves or uses words like ‘buzz’, ‘restricted’ or ‘caution’ these elements will be problematic for creating a link to illicit drugs, regardless of the fact that CBD is not an illicit drug. It is the implicit association with cannabis that will be problematic,” says the Portman Group.
Therapeutic claims? No way
Producers should not make any claims about CBD having benefits for health or wellbeing: with any type of health claim on alcoholic drinks already banned under EU law.
“As set out in the retained European Regulation (EC) No 1924/2006 (Nutrition and Health Claims Regulation)*, health claims are not permissible for alcoholic drinks containing more than 1.2% ABV. Nutrition claims are acceptable only if referring to low alcohol levels, the reduction of the alcohol content, or the reduction of energy content," says the Portman Group.
Making any sorts of claims about health or therapeutic qualities of CBD, therefore, is a clear no-no in the eyes of the group. Furthermore, it says brands much take care not to imply any claims around CBD and therapeutic qualities, enhancing metal or physical capabilities, or changing mood or behavior.
Much of the Portman Group’s advice, issued this week, draws on its January ruling on CBD gin ‘Colorado High’.
In this instance, the combination of the word ‘high’ with a reference to ‘Colorado’ (known for being one of the first US states to decriminalise recreational cannabis) along with a picture with a ‘hallucinogenic feel’ was deemed to create an ‘indirect association with illicit drugs’.
The Portman Group also pulled up the brand for using the term ‘wellness-enhancing’ on a back label.
It also took issue with the product descriptor of ‘CBD Gin’: given that CBD is widely marketed as providing pain relief or other health benefits and therefore could infer an alcoholic product had therapeutic benefits.
But craft gin company Silent Pool Distillers argued that adults are familiar with CBD and understand its distinction from cannabis. Responding to the ruling, it said the Portman Group - a self-regulatory industry watchdog funded by eight alcohol industry giants - had 'failed to grasp the reality of the CBD market'.
What can you say about CBD?
CBD should be stated as an ingredient on products. But the way of doing this should be carefully thought out to give it proportional prominence, says the Portman Group. This could have implications for brands which present themselves as ‘CBD Rum’ or ‘CBD beer’.
“It is important for product labelling to be clear about the nature of a product and consumers should know if a product contains CBD as an ingredient. The Advisory Service would recommend that this ingredient is listed factually, and clearly, on the back label of the product so that it is not given undue prominence when considering the overall impression of the product packaging.
“Factual references to CBD are likely to be acceptable in context, provided they are straightforward statements about the ingredient used in the product and are not given undue emphasis or featured prominently.
"Products should not incorporate CBD in the name or product descriptor. For example, products should not incorporate descriptors like ‘CBD Gin’ or ‘Rum infused with CBD’ as the Panel have stated that there is a risk that consumers may infer therapeutic benefits even without explicit claims about health or wellbeing.”
Take care with context
Ultimately, whether a product’s treatment of CBD in its marketing is acceptable or not will be assessed on a case-by-case basis, notes the group.
“In judging compliance with the Code, the matter will be looked at broadly and with regard to all the circumstances including, but not limited to, the drink, the overall impression conveyed, and any other relevant matters.
"It is therefore difficult to say whether a particular product name, image or statement on a drink’s packaging or in a promotion is acceptable under the Code without considering it in context. Companies are therefore encouraged to make use of the free Advisory Service before undertaking promotional activities or launching products to help ensure that they comply with the Code.”
The Portman Group was founded to promote responsible alcohol standards and is funded by eight alcohol industry members including AB InBev, Carlsberg, Heineken and Molson Coors. Its guidance on CBD marketing can be found here.
* The EU (Withdrawal) Act retains applicable EU legislation in the UK for the time being