November 5, 2019
Authored by: BCLP, Jennifer Jackson and Ashlee Difuntorum
Within the last two months, three class action lawsuits have been filed in federal courts against companies that sell ingestible products containing cannabidiol (CBD), a chemical compound found in the cannabis plant, alleging that the products contain significantly less CBD than advertised. Sellers of other food and supplement products facing this type of claim regarding their non-CBD products’ content have successfully argued that such claims are preempted by the federal Food, Drug and Cosmetic Act (FDCA) and its implementing regulations. But the Food and Drug Administration (FDA) has not yet approved CBD as an ingestible ingredient, food or dietary supplement. And while some states have followed the FDA’s lead, other states have legalized sales of ingestible, hemp-derived CBD products. This can leave food, beverage, and supplement companies confused about what rules apply to CBD as an ingredient in ingestible products.
The first of the three class actions was filed on August 16, 2019, in the United States District Court for the Southern District of Florida. Plaintiff alleges that defendants operate “JustCBD,” which advertises and labels ingestible products as containing certain amounts of hemp-derived CBD, when they really contain much less. Plaintiff allegedly tested defendants’ products and found that (1) the “JustCBD honey Liquid Tincture” has only 48.92mg of CBD even though it purports to have 100mg, and (2) the “JustCBD Apple Rings Gummies” contain a non-detectable quantity of CBD even though they purport to contain 250mg of CBD. Plaintiff claims he relied on representations and warranties regarding the quantity of