On October 27, 2020, the New York State Department of Health issued proposed regulations regarding cannabinoid hemp products. These proposed regulations (available here) are open for public commentary until January 11, 2021. They would change how products containing hemp-derived cannabinoids, including cannabidiol (CBD), are manufactured and sold in New York State. While the industry continues to await federal guidance from the FDA, these proposed regulations offer a glimpse into what actions the federal government might take with regard to CBD.
Continue Reading New York State Proposes New Cannabinoid Product Regulations

A recent Trademark Trial and Appeal Board decision confirmed that, for now and the foreseeable future, companies selling CBD-infused products intended for consumption, including CBD derived from hemp, will not be able to obtain a federal trademark registration covering such use.

The Lanham Act, the federal statute that regulates federal registration of trademarks, requires use of a trademark in commerce to qualify for federal registration. Accordingly, the United States Patent and Trademark Office (USPTO) will refuse registration of a trademark that is not in lawful use in commerce. Currently, the Food & Drug Administration (FDA) has interpreted the Food, Drug, and Cosmetics Act (FDCA) to prohibit the use of CBD in products intended for consumption. As a result, federal trademark registration for various goods that contain CBD, including dietary supplements, foods, and beverages, will be refused registration by the USPTO as unlawful under the FDCA.
Continue Reading Consumable CBD: No Federal Trademark Registration

As part of its ongoing efforts to address “unanswered questions about the science, safety, and quality of products” containing cannabidiol (CBD) and other cannabinoids, the U.S. Food and Drug Administration (FDA) has announced a multi-disciplinary conference to be held on November 19, 2020.  Hosted by the FDA’s Office of Women’s Health, the public meeting will discuss potential biological and psychosocial differences in use and responses to CBD and other cannabinoids.
Continue Reading FDA Announces Scientific Conference on Sex, Gender, & Cannabinoids

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.
Continue Reading Putative CBD Chocolate Class Action Dismissed: Allegations Must Be Plead with Particularity

Amid sustained legislative pressure for regulatory guidance and the FDA’s recent submission of draft enforcement guidance regarding cannabidiol (CBD) to the White House, signs from the FDA indicate increased momentum towards a federal pathway for the CBD market. This momentum from the FDA is affected by the approach to CBD taken by the U.S. Drug Enforcement Administration (DEA). While the industry awaits the FDA’s forthcoming guidance policy on CBD enforcement, the FDA’s approach articulated in two recent guidance documents contains important signals.
Continue Reading FDA Guidance Offers Clues Regarding Future Federal CBD Policy

The possession, distribution, and use of cannabis remains illegal under federal law. Consequently, in isolation, employers may believe that enforcing their zero-tolerance policies for drug use (as referenced here, zero-tolerance refers to policies that prohibit any on-duty or off-duty use of unlawful cannabis products) remains a defensible position, including in response to employee complaints that such policies restrict employees’ otherwise permissible use of cannabis products. But how does state legalization of recreational and medical cannabis use fit into the mix? As states become increasingly tolerant of cannabis use, employers may need to reconsider whether their anti-drug and drug-testing policies are compliant with applicable law in order to minimize the risk of discrimination or failure-to-accommodate claims resulting from the employer’s restrictions on the purportedly lawful use of cannabis products.
Continue Reading Zero Tolerance for Zero-Tolerance Policies? The Impact of Cannabis Legalization on Workplace Drug Policies

A new rule from the U.S. Drug Enforcement Administration (DEA) has caused considerable concern within the cannabidiol (CBD) industry. The rule relates to the distinction made in the 2018 Farm Bill that removed certain cannabis products, such as industrial hemp and those containing hemp-derived CBD, with levels of THC not exceeding 0.3% by weight from the federal controlled substances list. THC is the psychoactive substances most associated with a marijuana “high.” DEA’s interim final rule appears straightforward at first glance: cannabis products containing more than 0.3% by weight are subject to DEA enforcement as controlled substances. The rule appears to mean, however, that THC levels can never exceed 0.3% at any point during the product’s manufacturing process, even if the final product offered for sale had THC at appropriate levels.
Continue Reading New DEA Rule May Threaten CBD Manufacturing

On July 22, 2020, the U.S. Food and Drug Administration (FDA) submitted draft enforcement guidance for cannabidiol (CBD) industry for review by the White House’s Office of Management and Budget (OMB). The draft guidance is not yet available.  No date or proposed deadline for producing a final policy, but this submission indicates that the FDA

Perkins Coie’s Food Litigation 2019 Year in Review assessed key legal issues facing the food and beverage industry. Among these topics was cannabis, and especially hemp-derived CBD, in food and beverage products. The 2018 Farm Bill ushered in a new era for cannabis and cannabidiol (CBD). Following the law’s passage, products containing CBD have continued

On the heels of the U.S. Food and Drug Administration’s (FDA) recent declarations regarding the safety of products containing cannabidiol (CBD), several companies have been hit with class action lawsuits alleging that that the company’s CBD-containing products are mislabeled and falsely advertised in violation of state law. Further class action litigation is expected given the