Judge Remands CBD Labelling Dispute to FDA

On June 15, California joined Florida in deciding that the labeling and branding rules concerning hemp cannabidiol (CBD) products for retail sale and distribution must be determined by the Food and Drug Administration (FDA) and not the courts.

The decision resulted from a lawsuit in the Eastern District of California brought by plaintiff Kenneth Glass against defendant Hemp Bombs, best known for CBD infused candies. He alleged the company engaged in false advertising on the candy labels by asserting the gummies contained more CBD than existed within the product and writing on the label that the sale of CBD is legal in the United States.

Hemp Bombs moved to stay the proceedings pending FDA action on how CBD products, including the gummies at issue, should be labeled. The court granted the defendant’s motion under the primary jurisdiction doctrine. The court reasoned that the FDA must first be given an opportunity to develop rules, regulations and guidelines concerning the labelling of CBD products because the authority to do so was granted by Congress via the Agriculture Improvement Act of 2018, the labelling laws are “issues of first impression…requir[ing] expertise or uniformity in administration”, court intervention ran the risk of inconsistent guidance, and the FDA “appears to be properly exercising their regulatory authority” as demonstrated by the agency’s quick action to finalize of CBD labeling regulations.

Since 2019, the FDA developed a CBD-labeling taskforce, held a public hearing followed by a lengthy comment period, issued written guidance for consumers titled “What You Need to Know (And What We’re Working to Find Out) about Products Containing Cannabis or Cannabis-derived Compounds, Including CBD” and testified before Congress.

The court concluded that given the aforementioned factors above, the primary jurisdiction doctrine applied and thus required the court to “stay the case pending an administrative ruling” by the FDA. The FDA last provided a status update for the labeling regulations on March 5 and, while failing to provide a specified final date for said regulations, noted that “the FDA will continue to update the public as it learns more about CBD.”

Glass was represented by Bursor & Fisher, while Hemp Bombs was represented by Venable and Baker Donelson.