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Tommy Tobin

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Thomas Tobin’s practice focuses on complex commercial litigation and class action matters involving statutory, constitutional, and regulatory issues in a range of industries, including food and beverage, consumer packaged goods, and cannabis. In the food and beverage sector, Tommy has experience defending false advertising claims and consumer protection claims for well-known international corporations.

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On November 16, 2022, the Food and Drug Administration (FDA) issued five new warning letters to various companies making edible products containing cannabidiol (CBD) and/or Delta-8-tetrahydrocannabinol (THC). The companies were directed by the FDA to respond within 15 days to defend how their products do not violate the Food, Drug, and Cosmetic Act (FDCA) and how they plan to bring their products into compliance with the FDCA. Failure to address the issue to the agency’s satisfaction could plausibly result in enforcement actions, including seizure and/or an injunction.

The FDA’s most recent set of warning letters builds upon warning letters sent earlier this year targeting CBD and Delta-8 THC products. Previously, FDA has largely focused on CBD products that made health claims. These new warning letters are not, however, limited to those prior concerns. The FDA now appears to be particularly concerned about CBD and Delta-8 THC products that appeal to children.…

Continue Reading FDA Issues New Warning Letters to Companies Making CBD and Delta-8 THC Edibles

Cannabis: In Focus

  • Election Round-up: Two States Approve, Three Reject Adult-Use Cannabis Referendums
  • Northern District of New York Rules on Dormant Commerce Clause and Adult-Use Retail Licenses in New York
  • Kansas Federal Court Dismisses Hemp Seizure Suit
  • Federal Court Dismisses Florida Lawsuit Seeking Gun Rights for Medical Cannabis Patients

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Continue Reading Cannabis Legal Report – Week of November 14, 2022

Cannabis: In Focus

  • Cannabis Testing Companies Facing State Regulatory Scrutiny in Nevada and Florida
  • FDA Appoints Former State Cannabis Policy Regulator as New Cannabis Advisor
  • DOJ Responds to Florida Lawsuit Challenging Federal Regulations Regarding Firearm Purchases by Medical Cannabis Patients

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Continue Reading Cannabis Legal Report­­ – Week of October 3, 2022

A California state appeals court affirmed a bong maker’s win in a suit alleging it violated California’s Proposition 65 (Prop. 65) by failing to warn consumers that its products expose them to marijuana smoke that could cause cancer or reproductive harm.

Prop. 65 is a California initiative approved by voters in 1986 and enacted into law as the Safe Drinking Water and Toxic Enforcement Act that same year. The law prohibits knowingly and intentionally causing exposure to substances, including cannabis smoke and delta-9-tetrahydrocannabinol (THC), that are known to the state to cause cancer or reproductive harm, without first providing a clear and reasonable warning. California maintains a list of substances that trigger Prop. 65 warnings. To comply with Prop. 65, businesses must provide consumers with a compliant warning, unless they can ensure that their product does not expose consumers to a listed substance at levels that may cause cancer or reproductive harm.

Plaintiff-appellant Environmental Health Advocates, Inc. (EHA) filed a private enforcement action against Sream, Inc. (Sream) on November 12, 2020, alleging Sream violated Prop. 65 when Sream failed to provide a warning that their water pipe products—more commonly known as bongs—exposed consumers to marijuana smoke. EHA’s enforcement action sought “injunctive relief against Sream, from manufacturing, importing, selling, and/or distributing the products without a clear and reasonable warning.”…

Continue Reading California State Appeals Court Affirms Bong Maker’s Win in Prop. 65 Suit

On Wednesday, a U.S. Court of Appeals for the First Circuit panel applied the U.S. Constitution’s Dormant Commerce Clause (DCC) to the medical cannabis industry in a 2-1 decision, striking down local laws requiring state residency as unconstitutional and protectionist. While cannabis remains federally illegal, Maine legalized medical cannabis in 2018 and imposed limitations on who could own state-legal cannabis businesses in the state.…

Continue Reading First Circuit Strikes Down Maine Residency Requirement Under Dormant Commerce Clause

A class-action lawsuit was filed on July 12 in the U.S. District Court for the Eastern District of Arkansas alleging that cannabis testing companies inflated the amount of THC found in cannabis flower. Plaintiffs are a putative class of medical cannabis patients in Arkansas and bring suit under the Racketeer Influenced and Corrupt Organizations (RICO)…