Companies Can't Claim CBD Treats Mental Health Issues—But Their Paid Influencers Can, and Do

Luckily, as tends to be the case with posts that begin this way, she had a solution. The influencer, whose Instagram profile describes her as a health coach, usually posts semi-professional photos of herself in beautiful places around Southern California while wearing workout gear and bikinis. She appears to be in her early 20s, and most of her posts are tagged with generic, positive captions like “glowing and growing.” But like an increasing number of influencers and would-be influencers, she’s also intermittently eager to discuss her mental health struggles, and the relief she’s found for them.

“I’ve suffered with social anxiety almost all my life,” she wrote in September, addressing her fewer than 6,000 followers. “I’ve also had my fair share of depression, ptsd, and insomnia. If you’ve been through any of these, you definitely know the feeling of wanting to escape it all. Once I started trying Sunday Scaries CBD gummies, I had this feeling of overall relief and content. I couldn’t even remember the last time I felt that calm.”

This particular influencer belongs to the affiliate program run by Sunday Scaries, a company that sells CBD gummies and other products. That’s fairly clear to her followers, given that she offers a discount code at the end of the post and uses plainly promotional language. The visual language of her posts makes things clear, too: she stands in workout gear holding a Sunday Scaries product called Unicorn Jerky up to the camera with the label visible, her stylish yellow top contrasting with the teal bottle in her hand. For the first few weeks the posts were up, though, none of them were labeled as an ad. (Recently, after VICE reached out to her and Sunday Scaries, they were tagged as part of a “paid partnership” with Sunday Scaries CBD.)

That lack of initial clarity is understandable. The influencer isn’t famous or well-known—she's a so-called micro-influencer—and if she appears to not be always perfectly following FTC guidelines about sponsored content, which require influencers of any sort to clearly state when they’re being paid by marking posts as an ad or “sponsored,” that’s not unusual for people in her position. (It should also be noted that there’s not a lot of money involved here; Sunday Scaries’ affiliate-marketer guidelines show that influencers earn 20% of the net sale amount from their referrals, and bottles of Sunday Scaries gummies retail for $39.)

But if the claims that she and other influencers make about CBD aren’t extremely profitable to them, they are very, very valuable to CBD companies. Because of a legal and regulatory gray area around CBD—and because a host of wilder claims are keeping federal regulators extremely busy—influencers are regularly making unfounded claims about the miraculous mental health benefits of the product. Thousands of posts, most of them on Instagram, claim that CBD products can help with a host of issues: anxiety, PTSD, depression, and insomnia. But it's difficult to say how right now many of the people making these claims have actually been truly helped by the products, how many are experiencing a beneficial placebo effect, and how many are simply marketing. That's because the claims aren’t currently supported by much scientific research, although there are many studies on CBD’s effects in the works. In the meantime, CBD companies themselves allow influencers to give unbridled testimonials that they themselves legally cannot.

CBD companies themselves—at least the ones that stay on the right side of the law—are circumspect about what their products can do. Sunday Scaries, for instance, was founded by two former bar owners who write that they were inspired to try CBD because, as they put it, “the stress of opening the new bar, combined with the moral hangover after a weekend of partying, had us feeling anxious and unworthy.” (The term "Sunday scaries" refers to a type of anxiety and dread that happens when facing the start of the work week.)

When promoting their product in ways they’re properly accountable for, the company is extremely careful about the claims they make, emphasizing that CBD can make one feel “chill” or help with a host of problems, as they write on their site: “Calming the mind, work pressure, increase productivity, reset equilibrium, dating problems.”

None of those are identifiable diseases, disorders, or mental conditions, even if dating can feel like all of the above. It would be legally trickier to claim that their products treat or alleviate an actual disease, like generalized anxiety disorder. In their FAQ, they don’t recommend using CBD instead of prescription medication, writing, “Consult with your doctor before you do anything drastic. We have many customers that use CBD in conjunction with their meds or as an alternative (after they speak to their doctors of course.)"

Some of the influencers promoting their products, though, walk right up to the line of claiming that CBD cures serious clinical conditions. “Suffering from General Anxiety Disorder, Depression, HPD and Insomnia are huge challenges in my day to day life,” wrote another would-be influencer in Minneapolis, who appears to be a college student. “After using the CBD Gummies from Sunday Scaries, I can honestly say I’m in a much better mental state.” (This post identifies her as part of the “Sunday Scaries team.” It’s not clearly marked as an ad or sponsored. The woman responded to an initial request for comment from VICE, but didn’t answer any of our follow-up questions.)

In a post sponsored by Sunday Scaries, a blogger calling herself Whimsy Soul credits their products with alleviating her anxiety (“[S]ince incorporating CBD into my lifestyle, I’ve been functioning so much better”). She then proceeds down a long and ill-advised list of other ailments she claims CBD can “aid:”

These products have also been featured in what appear to be sponsored posts on sites like Anxiety Hack, as well as in product reviews from more mainstream publications like Allure, in posts that aren’t marked as sponsored content. All of them stress CBD generally—and Sunday Scaries specifically—as a treatment for anxiety.

With the help of influencers, CBD companies get the best of both worlds. Specific and enticing claims about their products are put forth for the public to see, without the companies having to make those claims themselves. That’s helpful for them because science is far behind marketing in terms of what we actually know CBD can provably do.

The strongest evidence for CBD’s efficacy so far involves clinical studies showing that it could be an effective treatment for childhood epilepsy syndromes. Much more research is needed to demonstrate whether it does much of anything for anxiety or depression, though there is some promising initial research: one study from 2011 suggested, for instance, that CBD could help reduce the anxiety produced by public speaking. The study found that the subjects “significantly reduced anxiety, cognitive impairment, and discomfort in their speech performance” after a pretreatment with CBD. But the researchers also suggested that much larger and long-term studies would be needed, especially to explore CBD’s effects on different anxiety disorders. (The same is true for marijuana.) A 2015 survey of existing research noted that in lab testing on animals, though, higher doses were found to be ineffective in treating anxiety, while lower doses showed evidence of working. In human subjects, the same survey found, the existing evidence "strongly supports the potential for CBD as a treatment for anxiety disorders: at oral doses ranging from 300 to 600 mg." CBD, the authors wrote, "reduces experimentally induced anxiety in healthy controls, without affecting baseline anxiety levels, and reduces anxiety in patients with SAD."

But then there’s the question of dosage. That 2011 public speaking study pre-treated the subjects with 600mg of powdered CBD, and the 2015 survey also found that 300 to 600 mg seemed to be an effective dose. But most gummies, oils, tinctures and other CBD edible products on the market have far less in them, and a standard recommended dose is typically between 10 and 20 mg. Individual gummies tend to contain between 10 and 25 mg each: Sunday Scaries gummies have 10, while a company called FAB CBD sells ones that are 25 mg each, as does the company Pure Kana. These companies all sell CBD in oil form as well, and a “dose” is usually no more than 100 mg. In other words, it’s far less than what the initial clinical studies have suggested might be effective.

When contacted for comment about the specific posts on Anxiety Hack and Whimsy Soul, Michelle Alfaro of Covet PR, a public-relations representative responding on behalf of Sunday Scaries, pointed out that dietary supplements are legally allowed to make claims around “structure/function,” which is true. The FDA says that dietary supplement-makers are allowed to make claims about how “the role of a nutrient or dietary ingredient [is] intended to affect the normal structure or function of the human body,” so long as the claim is not misleading. But supplements also have to distinguish themselves from drugs, by posting a disclaimer that the product is not intended to "diagnose, treat, cure or prevent any disease.”

“Disease claims are those that claim to diagnose, cure, mitigate, treat, or prevent disease so we ourselves know it is important to know the difference between the two,” Alfaro wrote. “If any of these claims are planned to be mentioned within this piece then we unfortunately are not able to move forward with participating in/contributing.” (Earlier in our exchange, Alfaro had asked to see VICE’s article before it went live, writing, “With the constant shift in the CBD landscape, we just want to make sure the messaging for our client is as accurate as possible.” We declined.)

Ultimately, Alfaro told us that the specific claims in the Whimsy Soul post were not “approved by Sunday Scaries,” but added that it was impossible for the brand to have them removed:

The Federal Trade Commission has certainly taken notice of the too-enthusiastic language around CBD and mental health. According to Rich Cleland of the FTC’s Ad Practices Division, assertions that CBD helps treat or alleviate anxiety or depression are “performance claims.” To make them, he said, “would require that the company had substantiation for the claims. And that substantiation would in all likelihood would have to be reliable scientific evidence.”

As far as the FTC is concerned, influencers don’t get to make claims that marketers legally can’t. “We would expect that the marketer to police their influencers,” he said, adding that they’ll hold advertisers “responsible for any unsubstantiated claims that were made by influencers.” (This month, the FTC released a video aimed at influencers, reminding them what they legally can and can’t say.)

At the same time, he acknowledged, anxiety and depression are both general terms that could refer to both a diagnosed medical condition and something more amorphous. “Clinical anxiety, that would require a higher level of evidence, probably human clinical testing,” he said. “Anecdotal reports would not suffice to substantiate that kind of claim, for a lot of reasons, including the fact that we would expect to see a placebo effect.” As depression is a clinical condition, making claims that a product could treat it would require human clinical testing.

Depression and anxiety do, though, paradoxically fall into something of a gray area, he said. For people feeling “occasional anxiousness,” claiming CBD can treat it “would probably require less evidence,” he said. “We haven’t looked specifically at that kind of claim because it is a generalized claim and I’m not sure how consumers would even interpret it. That’s a little—that’s a gray area, I would say.”

Meanwhile, federal regulators are occupied with other, gravely serious false claims about how CBD works and what it can do. In September, the FTC and the Food and Drug Administration sent joint warning letters to companies claiming that their CBD products could treat diseases including Alzheimer’s disease, cancer, and multiple sclerosis.

“One company’s website claims CBD ‘works like magic’ to relieve ‘even the most agonizing pain’ better than prescription opioid painkillers,” the FTC said in a release. The company also claimed CBD was “clinically proven” to treat a laundry list of diseases:

“In the area of snake oil,” said Cleland from the FTC, “there’s literally nothing new."

Some recent FTC actions have also raised questions about how stiff the penalties are for false claims. The skincare company Sunday Riley, for instance, recently settled an FTC complaint that charges them with getting employees to post fake online reviews. But the settlement didn’t require any admission of wrongdoing, or ask them to refund consumers or pay any money. Two FTC commissioners even wrote a dissenting opinion, warning that the settlement could encourage other companies to conclude that the price of false advertising is money well spent.

“Unfortunately, the proposed settlement is unlikely to deter other would-be wrongdoers,” wrote Commissioner Rohit Chopra, joined by Commissioner Rebecca Kelly Slaughter. “Consider the cost-benefit analysis that a firm might undertake in considering whether to engage in review fraud. The potential benefits are substantial: higher ratings, more buzz, better positioning relative to competitors, and higher sales. The direct costs of generating reviews are minimal, certainly far less expensive than traditional advertising. The biggest potential cost is if the wrongdoer is caught, but it is likely that the vast majority of fake review fraud goes undetected.”

Mike Sill, the cofounder of Sunday Scaries, told VICE in an email that he’s aware the Food and Drug Administration is, as he put it, “specifically targeting brands who are making egregious health claims and sending them warning letters.” He said that Sunday Scaries:

In the meantime, he said, influencers are sent a guide:

That said, he added, “Sometimes these claims are made without our acknowledgement, and that’s something we actively have to correct, manage and explain.” (What form that management takes is somewhat unclear, since Sunday Scaries’ public relations representative told us that even sponsored posts can't be edited by the brand.)

Sill said that the “true brand mission” of Sunday Scaries is to “destigmatize anxiety,” without actually drawing a direct link between the company’s products and anxiety treatment itself. “We constantly tell our influencers not to make any disease claims and to avoid saying that Sunday Scaries will cure their anxiety.”

It’s fair to say that is not always, precisely, the message that’s making its way to consumers. And Rich Cleland at the FTC said those consumer claims, particularly on social media, can be very, very hard to trace.

“It’s very difficult, very challenging to track things like Instagram,” he admited. They rely on complaints they receive from the public or from consumer protection organizations or even disgruntled competitors. “But we also do a fair amount of internet surfing ourselves,” he adds.

And if all that time online is making them anxious, well, there’s a gummy for that.

Follow Anna Merlan on Twitter.