A recent putative class action regarding edible cannabidiol (CBD) products reminds potential plaintiffs of the importance of pleading with particularity.
On behalf of a putative class of consumers, a purchaser alleged that Bhang Medicinal Chocolates contained a smaller quantity of CBD than the product advertised. Plaintiff asserted that he had independent lab testing to support this claim. On this basis, the purchaser alleged violations of California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), and Consumer Legal Remedies Act (“CLRA”), and he also lodged claims of breach of express warranty, fraud, and negligent misrepresentation.
In contrast to a growing number of federal courts staying CBD class action matters on primary jurisdiction grounds (see coverage here), Judge Bernal of the Central District of California found that a stay was unwarranted given that the court could handle without the FDA’s guidance, writing: “Plaintiff in the instant case does not claim to have been defrauded or hoodwinked by the legal status of CBD; he simply got less CBD than he thought he was paying for. This type of straightforward dispute is one that this Court is well-suited to handle.”
On the other hand, Judge Bernal granted defendant’s motion to dismiss, finding that “[c]larity from Plaintiff on which chocolates he bought, when he bought them, how they were advertised, and how they fell short… would state a claim that Defendant could defend and the Court could consider.” Lacking such information, which the plaintiff failed to plead, the consumer’s claims could not proceed.
The case is Ballard v. Bhang Corp., No. 5:19-cv-02329 in the Central District of California. According to a recent court filing, the case has subsequently settled for undisclosed terms. The opinion can be found here.