On December 22, 2020, the U.S. Food and Drug Administration (FDA) issued five warning letters to companies selling products containing cannabidiol (CBD). In a statement, the FDA’s Amy Abernethy, principal deputy commissioner, explained that the agency remains “focused on exploring potential pathways for CBD products to be lawfully marketed while also educating the public about these outstanding questions of CBD’s safety,” and that the agency “will continue to monitor and take action, as needed, against companies that unlawfully market their products—prioritizing those that pose the greatest risk of harm to the public.”
Continue Reading FDA Issues 5 Warning Letters Targeting Unsupported CBD Health Claims

On December 7, 2020, cannabis industry leaders, former federal government officials, and leading state regulators met for a Virtual Public Policy Summit, a policy discussion among key leaders in the cannabis industry that was co-hosted by the Marijuana Policy Project and the National Cannabis Industry Association (NCIA). Participating industry leaders discussed how to define and address key issues to help advance the cannabis industry in 2021 and beyond. To help facilitate candid discussion, the event was closed to the media (likewise, comments made and positions taken described below have not been ascribed to particular speakers).
Continue Reading Striving to Reach Consensus on a Regulatory Framework for the Emerging Cannabis Industry

Today, the U.S. Federal Trade Commission (FTC) announced Operation CBDeceit, a suite of six settlements that herald the FTC’s ongoing efforts to monitor the marketplace regarding misleading cannabidiol (CBD) product claims. In a statement, FTC leadership said the six settlements “send a clear message to the burgeoning CBD industry” to avoid making “spurious health claims that are unsupported by medical science.” The FTC noted that companies, particularly CBD product manufacturers, “that represent expressly or by implication that what they sell can prevent, treat, or cure serious medical conditions will be held to the highest substantiation standards and marketers can expect careful scrutiny of those promises.”
Continue Reading FTC Announces Crackdown on Unsupported CBD Marketing

Proposition 65 warning requirements announced last year are set to be enforced starting January 3, 2021; if your business is selling cannabis products in California, now is the time to ensure that your labeling complies with state requirements.

Last year, California’s Office of Environmental Health Hazard Assessment (OEHHA) added Δ9‑tetrahydrocannabinol, better known as “THC,” to

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