Judicial Decisions Reflect Need for CBD Regulations and Legal Counsel

While some courts await FDA regulations on CBD, FDA has continued to send warning letters to companies making and marketing CBD products.

Consumer class actions regarding CBD marketing are on the rise. In recent months, a number of federal judges have placed lawsuits concerning the marketing of CBD-infused products on hold because the U.S. Food & Drug Administration (FDA)—tasked with regulating those products under the 2018 Farm Bill—still has not issued regulations governing how they can be marketed.

Besides updating its website with content reflecting its current approach to CBD products, the only pertinent FDA action since the Farm Bill passed has been the issuance of warning letters to CBD product manufacturers, distributors and retailers regarding their advertising. While warning letters provide insight into the FDA’s views about how CBD products should not be marketed, they are not law and they may not help courts handling the increasing number of CBD claims determine whether the sale of a particular CBD product violates the law. The invocation of the “primary jurisdiction” doctrine by federal court judges, and the attendant deferral of decisions in CBD cases pending the issuance of FDA regulations, underscores the need for sound legal advice in connection with marketing CBD products.

Federal Lawsuits Stayed Given Lack of FDA Regulation of CBD

In late May, the presiding judge in Colette v. CV Sciences, Inc.—a putative class action pending in the U.S. District Court for the Central District of California, which asserts consumer fraud claims relating to the marketing and sale of CBD-infused products, such as CBD sprays, CBD oil drops, CBD gummies and CBD capsules and softgels—ordered a stay of the case given the absence of CBD regulations by FDA. [Read More @ Duane Morris]