In recent years, several CBD companies faced product liability lawsuits brought by consumers. Many of these cases were dismissed without prejudice or stayed until the FDA takes action to regulate CBD products, meaning that as soon as the FDA acts on CBD products, these lawsuits can continue or be refiled. (See Snyder v. Green Roads of Florida, 430 F. Supp. 3d 1297 (S.D. Fla. 2020); Colette v. CV Sciences, Inc., No. 2:19-cv-10228-VAP-JEM(x) (Cent. California))
In a recent announcement, the FDA affirmatively stated that it will not take any action to regulate CBD and that a regulatory pathway must come from Congress. While this announcement is not binding and does not have the force of law in court, these lawsuits could possibly be revived due to the FDA’s statement.
Many of these products liability lawsuits make similar claims:
- That CBD products violate the Federal Food, Drug, and Cosmetic Act (FFDCA) and are, therefore, illegal
- That prohibited drug and disease claims were made about the products
- That these products were mislabeled in regards to their health benefits and/or actual CBD content
In some cases, lawsuits were filed after products were purchased and sent to laboratories for testing to compare the actual CBD content with that advertised on the label. This situation presents a problem for CBD companies, as testing accuracy can vary between laboratories, and the same product can yield different results at different laboratories.
When evaluating these lawsuits, many courts decided that, due to the lack of FDA regulation at the time, the cases should be dismissed or stayed while awaiting further rulemaking from the FDA. Now that the FDA has stated that it will not undertake any rulemaking regarding CBD products, the fate of these lawsuits and future related claims is unclear.
Based on the recent announcement from the FDA, courts may allow the revival of these stayed actions. If this is the case, the outcome may not be favorable for CBD companies. In the FDA press release announcing that it will not act to regulate these products, the FDA stated that it has several safety concerns about CBD products and reiterated its position that these products are not legal under the FFDCA. This statement may weigh against the argument that the state of federal CBD regulation is in flux and that further clarity from the FDA is needed. Plaintiffs and their attorneys actively monitor the FDA’s position on CBD products. If courts decide to revive these lawsuits based on the FDA’s recent announcement, it could lead to the proliferation of additional similar cases.
Courts may also decide that because the FDA has called on Congress to take action to regulate CBD, the lawsuits should be further stayed pending action from Congress. If this is the case, these lawsuits may not be resolved soon. Any action from Congress, if taken, could take years to implement.
