Legal Reviews Are Essential Before Advertising High-Risk Products

State-by-state reviews are often necessary for CBD, vaping, e-cigarettes, cannabis, hemp, tobacco, alcohol, firearms, gambling, and adult content

It can be difficult to keep up with the constant changes to federal, state, and local laws regulating marketing and advertising of high-risk goods and services. However, the risks of violating laws and regulations regarding certain high-risk products can be high, with severe penalties and even the risk of criminal prosecution.

As an example of the difficulty for advertisers, while laws governing advertisements for tobacco, alcohol, firearms, gambling, and adult content have been around for years, laws are now just emerging for cannabis, hemp, CBD, vaping, and e-cigarettes. Moreover, laws for marketing over the internet (as opposed to sales in brick-and-mortar stores) are still evolving; and the Federal Trade Commission, for example, is continually issuing new guidelines and warning letters (the most recent cautioning against unlawful COVID-19 promotions, such as for products claiming to treat or prevent COVID-19 or for services misleadingly capitalizing on the pandemic). What may be considered lawful in one state may be illegal in another; and even if certain advertisements do not violate specific laws, they may be banned by certain websites or platforms, such as Google and Facebook.

Often, a comprehensive evaluation or state-by-state breakdown is needed.

Below are some considerations to evaluate if you are advertising higher-risk content:

• Are the targeted readers over the legal age limit (for example, 21 for alcohol ads)?
• Are the ads truthful, substantiated, and not misleading?
• Are the ads promoting overconsumption of a product, such as cannabis or alcohol?
• Are the ads attempting to sell prohibited products online?
• Are the ads violating any state, federal, or local laws or regulations?
• Are the ads violating any non-binding industry guidelines?
• If the ads are online, are they violating any website or platform terms of service?

If you are advertising or want to advertise in a higher-risk area, such as promotions of goods or services involving cannabis, hemp, CBD, vaping, e-cigarettes, tobacco, alcohol, firearms, gambling, dating, sexual or adult content, dietary supplements, business opportunities or work-at-home offers, or certain financial programs, you should be aware of the pertinent laws and risks. Retaining experienced counsel can be crucial, including in evaluating a state-by-state survey.

The good news is that Kronenberger Rosenfeld LLP regularly assists clients with advertising compliance, including advertisers promoting products that are considered high risk. We assist clients to navigate these difficult areas, including helping our clients comply with new laws for advertising goods and services on the internet or through email campaigns or telemarketing. If you need help with the advertising of high-risk products, please contact one of the firm's attorneys or email us at [email protected].