publication May 7, 2020

FDA’s Ongoing Review of CBD and its Impact on Class Action Litigation

‘FDA’s Ongoing Review of CBD and its Impact on Class Action Litigation’ by Rend-Al-Mondhiry and Megan Olsen, Vice President and Associate General Counsel, Counsel for Responsible Nutrition. Washington Legal Foundation, May 7, 2020.

Shortly after the signing of the Farm Bill in December 2018,1the Food and Drug Administration (FDA) acknowledged the “growing public interest” in hemp-derived cannabidiol (CBD) dietary supplement and food products and committed to “take steps to make the pathways for the lawful marketing of these products more efficient.”2 One year and 22 Warning Letters later—not including those issued prior to December 2018—the FDA has yet to provide any clarity about the lawful marketing of CBD, or even indicate a proposed timeline for such action. In the meantime, states have moved forward with their own rules for CBD products, creating an inconsistent patchwork of requirements. More recently, class action plaintiffs have targeted the industry with lawsuits that are at odds with both the Federal Food, Drug, and Cosmetic Act’s (FD&C Act) prohibition on private enforcement and the well-established primary jurisdiction doctrine.

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