A consumer has filed a putative class action alleging that the labels of Global Widget's products containing cannabidiol (CBD), including gummies, lollipops and syrup, do not identify an accurate amount of CBD in the products. Ahumada v. Global Widget LLC, No. 12005 (D. Mass., filed September 24, 2019). "Defendant makes numerous false and misleading claims on the front label of its CBD Products as well as on the retail website selling its CBD Products to illustrate and convey to consumers, the level of potency associated with benefits that consumers can expect to receive through their consumption. Specifically, Defendant misrepresents that the CBD Products have specific amounts of CBD when, in fact, the Products do not contain the amount of CBD as advertised and are instead grossly under-dosed," the plaintiff argues. "Defendant’s multiple and prominent systematic misrepresentations regarding the amount of CBD in the Products form a pattern of unlawful and…
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A group of U.S. lawmakers, led by Reps. Chellie Pingree (D-Maine) and James Comer (R-Ky.), have urged the U.S. Food and Drug Administration to "quickly adopt a policy of enforcement discretion and to consider issuing an interim final rule to regulate [cannabidiol (CBD)] as a dietary supplement and food additive while simultaneously moving forward with a robust framework for evaluating the safety and accurate labeling of these products." The letter stated that the agency's "current regulatory posture on CBD has created significant regulatory and legal uncertainty for participants in this quickly evolving industry. We are discouraged by FDA's estimation that a rulemaking process could span 3 to 5 years. We believe there are more expeditious measures that FDA could take that would establish regulatory clarity while pursuing enforcement actions against bad actors." In the U.S. Senate, Majority Leader Mitch McConnell (R-Ky.) reportedly took a different path in an effort to…
The U.S. Federal Trade Commission has announced that it sent warning letters to three companies selling "oils, tinctures, capsules, 'gummies,' and creams containing cannabidiol (CBD), a chemical compound derived from the cannabis plant." The announcement notes that the letters warn the companies—which have not been identified—that "it is illegal to advertise that a product can prevent, treat, or cure human disease without competent and reliable scientific evidence to support such claims." The agency states that each company marketed its CBD products as able to "treat or cure serious diseases and health conditions," such as relieving "even the most agonizing pain" or treating autism, anorexia, schizophrenia, Alzheimer's disease, traumatic brain injuries and other conditions. "In the letters, the FTC urges the companies to review all claims made for their products, including consumer testimonials, to ensure they are supported by competent and reliable scientific evidence. The letters also warn that selling CBD…
A California federal court has rejected a trademark infringement claim on the grounds that the company alleging preceding use of the trademark manufactures cannabis-infused edibles, which are illegal under federal law. Kiva Health Brands LLC v. Kiva Brands Inc., No. 19-3459 (N.D. Cal., entered September 6, 2019). The parties to the litigation—Kiva Brands Inc. (KBI) and Kiva Health Brands (KHB)—dispute the rights of the "Kiva" trademark, and KBI argues that its ownership stems from its predecessor company selling cannabis-infused edibles in California since 2010. "While KBI is only asserting California common law rights to the KIVA mark [], it is doing so as a defense to a federal trademark claim," the court found. "That defense relies on KBI's prior use of the mark. [] KBI's prior use was illegal under federal law []. KBI therefore did not make lawful prior use of the mark. [] To hold that KBI's prior…
The U.S. Court of Appeals for the Ninth Circuit has reversed a district court's decision not to apply an abstention that would defer a case on the legality of transporting hemp to state court proceedings. Big Sky Scientific v. Bennetts, No. 19-0040 (9th Cir., entered September 4, 2019). Hemp producers were reportedly hoping to receive guidance from the federal courts on the interpretation of the 2018 Farm Bill and its change in legal status for hemp, which producers began sending across state lines before states established regulatory frameworks for the crop.
The U.S. Food and Drug Administration (FDA) has issued a warning letter to Curaleaf Inc. for "illegally selling unapproved products containing cannabidiol (CBD) online with unsubstantiated claims that the products treat cancer, Alzheimer's disease, opioid withdrawal, pain and pet anxiety." FDA cites the company's website and social media accounts to assert that Curaleaf's marketing establishes its products—including "Bido CBD for Pets"—as drugs or animal drugs because the products are portrayed as able to help alleviate anxiety and fear, among other purported benefits. The agency also indicated that it will update the public on its progress towards creating a CBD regulatory framework by fall 2019. "We understand this is an important national issue with public health impact and of interest to American hemp farmers and many other stakeholders. The agency has a well-established pathway for drug development and drug approvals, and we remain committed to evaluating the agency’s regulatory policies related…
Mondelez Canada Inc. has filed a lawsuit in California federal court alleging Stoney Patch cannabis-infused gummies infringe the trademark and trade dress of Sour Patch gummy candies. Mondelez Canada Inc. v. Stoney Patch, No. 19-6245 (C.D. Cal., W. Div., filed July 19, 2019). Stoney Patch candies, which contain tetrahydrocannabinol (THC), and Sour Patch Kids are both sold in yellow bags with green accents featuring the first word of the brand in green, all-caps sans serif type and "Patch" in the same type in orange. Where the Sour Patch Kids bag features silhouettes of the candies—colorful gummies in humanoid shapes—the Stoney Patch bag features images of a marijuana leaf. Mondelez argues that "it is inconceivable" that Stoney Patch adopted its mark without notice of the Sour Patch design and Mondelez' trademark rights to it. The company alleges federal trademark infringement, trade dress infringement, trademark dilution and unfair competition, and it seeks…
A group of 38 state attorneys general have submitted a letter to the U.S. Food and Drug Administration (FDA) in response to the agency's call for comments on possible regulatory approaches for cannabis and cannabis-derived products such as cannabidiol (CBD). "As the primary enforcers of our respective states' consumer protection laws, we offer a unique perspective as to the new legalized market of certain cannabis and cannabis-derived compounds, including CBD products," the letter states. "A crucial element of FDA regulation and oversight should be an on-going assessment of the potential risks or benefits of these products, particularly for specific populations such as pregnant women, adolescents and children, and the elderly. How these products interact with other dietary or pharmaceutical products should be included in this assessment. It is also important that companies not mislead consumers. Scientific and medical data from the FDA would assist in meaningful enforcement of advertising laws…
More than half of in-house counsel surveyed in a new white paper by Shook, Hardy & Bacon plan to increase legal spending in the next two years to accommodate the evolving cannabis market, with a significant growth in litigation threats anticipated over the next decade. Read the results of the white paper >> “Articles and comments from industry players (and its detractors) often invoke images from the wild, wild West, and that might be a fair assessment in that the legal landscape for these products remains unclear,” stated Shook Partner Katie Gates Calderon, co-chair of the firm's new Cannabis Law Practice. Shook, Hardy & Bacon’s Cannabis Law Practice has released a report in partnership with ALM Media, exploring the impact of the global cannabis economy on the food and beverage, health and wellness, and consumer goods industries. The results of this in-house counsel survey show that legal departments outside the…
The U.S. Food and Drug Administration (FDA) has issued an update for consumers explaining its investigations into cannabis and cannabis-derived compounds, including cannabidiol (CBD). The agency indicates that it is "working to learn more about the safety of CBD and CBD products," specifically: (i) "[t]he effects CBD could cause in the body, such as toxicity to the liver, when someone ingests CBD regularly over a long period of time"; (ii) "[t]he cumulative exposure to CBD if people access it across a broad range of consumer products"; (iii) "[t]he effects of CBD on special populations (e.g., the elderly, children, adolescents, pregnant and lactating women) or types of animals (e.g., species, breed, or class)"; and (iv) "[t]he safety of CBD use in animals (e.g., species, breed, or class) including pets." FDA also advises that "unapproved CBD drug products have not been subject to FDA review as part of the drug approval process,…
