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As the CBD industry continues to wait for the U.S. Food and Drug Administration (FDA) to begin the rulemaking process for the regulation of cannabis-derived products — which will hopefully provide some clarity regarding how the agency plans to classify and regulate the rapidly growing CBD marketplace — federal courts are telling plaintiffs that they, too, must wait.

On January 3, 2020, a Florida federal judge stayed a proposed class action that alleges a Florida company misled consumers regarding the amount of CBD in its products. Applying the primary jurisdiction doctrine, the court stayed the case until the FDA completes its rulemaking, noting that:

· While the FDA is exercising regulatory authority over ingestible CBD products, there is uncertainty as to the FDA’s final rulings;

· Ingestible CBD products are within the FDA’s jurisdiction and the FDA is “properly exercising their regulatory authority”;

· The 2018 Farm Bill “explicitly recognized the FDA’s authority to regulate products” containing cannabis and hemp-derived products; and

· The “exercise of regulatory authority by the FDA over the labelling of ingestible CBD products requires both expertise and uniformity in administration.”

On May 22, 2020, a federal judge in California adopted the primary jurisdiction doctrine analysis from the Florida Court, issuing a stay for a similar proposed class action alleging that the defendant labeled its CBD products as dietary supplements in violation of federal law. The California judge noted that:

· The lawsuit raises “issues of first impression surrounding how the FDA intends to classify and regulate CBD products”;

· While plaintiffs relied on the FDA’s November 2019 warning letters to certain CBD retailers in order to establish illegality, the “fact remains that the FDA has not formally established its position”; and

· There are several CBD-related lawsuits pending and “inconsistent rulings are likely to follow in the absence of FDA guidance.”

The Florida case is Snyder v. Green Rds. of Fla. LLC, №0:19-cv-62342-UU, 2020 U.S. Dist. LEXIS 1145 (S.D. Fla. Jan. 3, 2020).

The California case is Colette v. Cv Scis., №2:19-cv-10227-VAP-JEM(x), 2020 U.S. Dist. LEXIS 93553 (C.D. Cal. May 22, 2020).

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