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Coming soon: new guidance for alcoholic drinks containing CBD

Specific UK guidance for producers of drinks containing both alcohol and CBD will be developed after the first complaint against one such brand was upheld by the voluntary regulating body for the UK drinks industry.

That guidance will likely encompass how to refer to CBD as an ingredient without making an implicit health and wellness claim; and how to build a brand without the overall effect suggesting illicit drugs.

The former in particular will be of interest to companies looking to produce alcoholic CBD products. The panel reviewing the complaint in question decided that describing a product as CBD gin implied a health claim for an alcoholic drink.

They said consumers would assume CBD provided pain relief and other health benefits, as it is widely marketed as doing so, and so an alcoholic drink containing CBD would be assumed to have such benefits.

The CBD gin brand in question, Colorado High, from Silent Pool Distillers, was criticised by the Portman Group – a voluntary regulator sponsored by some of the largest alcohol companies operating in the UK – for using packaging that suggested an association with illicit drugs and that the product might have therapeutic properties that could change mood or behaviour.

Silent Pool declined to continue working with the Portman Group after its initial arguments were rejected – and Portman then issued a Retailer Alert Bulletin (RAB).

The alert was sent to all 130 signatories of the code – including major distributors such as supermarkets – advising them not to restock the product after three months to complete current orders and to sell off existing stock.

Signatories were advised to not place any further orders after 20th April. The RAB is non-enforceable but it is highly likely that signatories to the Portman code of conduct would follow its advice.

Silent Pool apparently stopped working with the Portman Group towards a solution after the review panel rejected the distillery’s argument that there could be no suggested association with illicit drugs as CBD was not illegal.

It may also have objected to the panel’s decision that mentioning CBD at all other than in the list of ingredients was akin to making a health claim.

The Portman Group said that after considering the issue, it felt companies should only list CBD as an ingredient but not incorporate it into the name of the product, the product description, or feature it prominently on packaging at all. This was the only way an alcoholic brand could convey information about the inclusion of CBD without risking consumers thinking there might be some therapeutic benefit from consuming it.

The process led to Silent Pool levelling accusations of bias against the self-appointed regulator.

It said the whole idea of linking CBD – a legal substance – to the promotion of illicit drugs was an inherently flawed argument. It also claimed the documents the panel used were flawed.

The chair of the panel countered that Silent Pool, the complainant and the panel all received the same list of documents for consideration before the meeting. The chair “strongly refuted” the suggestion that the panel was not independent.

It is not the first time, however, that accusations of bias have been levelled at the Portman Group as an industry self-regulating body. Its source of funding from major drink brands and inevitable closeness to those brands has led to multiple claims that it tends to make decisions which favour the major brands and hinder smaller independent brands working to establish themselves in the UK.

Before refusing to cooperate further, Silent Pool distillery did put forward its arguments to justify the criticised elements of its branding.

It said that the use of the word “high” in the brand name Colorado High was in reference to its CBD being sourced from Colorado – often called the Mile High State because of its position in the Rocky Mountains.

The picture on the bottle was not meant to be psychedelic but simply an artist’s interpretation of an autumnal view of the mountains and lakes of the US state, to “anchor the product in messaging around pure, clean, high mountain peaks, an allusion to the product name,” Silent Pool added.

The review panel said: “The company noted that the panel appeared to be using a dictionary definition of ‘high’ which rested on intoxication or euphoria, states that would be far greater than CBD would cause.”

It added: “The company reasserted that the mountains and lake were a stylised version of a famous view and the distorted view through the artist’s eyes did not make it ‘hallucinogenic’.”

In reference to the second complaint, the panel said Silent Pool had deliberately chosen its the wording on its back label to be effectively meaningless. It said that it “did not claim to suppress or enhance anything, instead it talked about balance, whatever that was for a person, and left the consumer unaltered,” the complaint document said.

However, the document also noted that the company had said CBD was widely believed to enhance overall body wellness and that it had referred to that view in its back-label text. The Portman Group highlighted as potentially problematic the phrases: “A sensory infusion of wellness-enhancing CBD and refreshingly complex gin”; and “Colorado High is a spirit that supports your body’s natural balance and tastes great doing so”.

In response, Silent Pool noted that CBD advocates believed the substance had health benefits and that it acknowledged this was a subjective belief rather than a clinically supported position. It added that there was clinical evidence that CBD posed little threat to public health.

“In short, the company stated that there was no identifiable consumer harm from the product that the public needed to be protected from,” the Portman Group said. It further noted that the review panel had discussed the company’s response to the provisional decision and decided that there was a distinction to be made between the legality of CBD, which was not at issue, and any suggested therapeutic effects.

“The Portman Group review panel noted the problematic phrase ‘wellness-enhancing’ as particularly concerning and concluded that the packaging made clear and explicit claims that the product had therapeutic qualities,” the complaint said. “The panel also noted that CBD was widely marketed as providing pain relief and other health benefits and that consumers may assume that an alcoholic drink containing CBD had health benefits.”

Overall the panel ruled that taken together the use of “psychedelic” colours in the picture and words like “high” were likely to create a reference to illicit drugs in the minds of most consumers.

The panel acknowledged that “high” had multiple meanings but said that even if the reference was taken as an allusion to Colorado, that would itself be problematic given the state’s reputation as one of the first in the US to legalise recreational cannabis.

“The panel considered that these elements might be acceptable, individually, in some contexts but concluded that on this packaging, the cumulative effect of the image, the reference to Colorado and the word ‘high’ created an indirect association with illicit drugs,” the Portman Group said.

It also said that the statements on wellness-enhancing on the back label did convey a suggested health benefit and so clearly and explicitly made therapeutic quality claims for the product.       

What should we take from all this? The threshold for health claims in marketing alcoholic products is even more rigorous than for standard products and “wellness-enhancing” would certainly cross it. This is not the first time either that double-entendres suggesting drugs, or commonly cannabis-related images, such as leaves or tie-dye colours, have got a CBD brand into trouble.

But the idea that a brand cannot even mention CBD outside the ingredients list of an alcoholic beverage is pretty astounding. It would essentially end alcoholic CBD products as a category in the UK if established as a rule – and banishment from the shelves of most of the major supermarkets as well as those of other signatories of the Portman Group Code would effectively make it an enforceable rule.

Why go to the effort and expense of formulating a product and adding CBD to it if there is no discernible difference to the consumer other than a mention in the small print of the ingredients list?

CBD-Intel will report on any further forthcoming information on the issue from either Silent Pool or the Portman Group.

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