On March 5, 2020, the Commissioner of the U.S. Food and Drug Administration (FDA) released a statement describing the agency’s continued evaluation of cannabidiol (CBD) products and signaling issuance of an enforcement policy against sellers and marketers of CBD products.
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This post originally appeared as an article in Cannabis Business Executive on December 5, 2019.
A cannabis product business is no simple venture. Cannabusinesses have to innovate to remain competitive just like any other company, but in an industry plagued by complex and changing federal and state regulations of marijuana (aka cannabis). At the heart of every innovation lies potentially protectible intellectual property (IP) rights and that is no different in the cannabis industry. In our two-part article, we provide cannabis entrepreneurs with an overview of the IP protections available to them for their innovations. In Part I, we discuss trade secret protection. In Part II, we will cover patent protection. In both parts, we will address choosing between trade secret and patent protection.
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On November 25, 2019, FDA issued Warning Letters to 15 companies illegally marketing cannabidiol (CBD) products. On the same day, U.S. Food & Drug Administration (FDA) published a revised consumer update, “What You Need to Know (And What We’re Working to Find Out) About Products Containing Cannabis or Cannabis-derived Compounds, Including CBD,” describing the “very limited” scientific information available about CBD and its health effects. The points made in the Warning Letters and update are nothing new to those closely following the FDA working group on cannabis and CBD, but the actions signal the FDA’s continued enforcement against companies marketing CBD foods, supplements, and cosmetics with unsupported health claims.
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As we have long expected, the plaintiff’s bar has focused its attention on the growing CBD product sector. A series of recently filed lawsuits signal that it is more important than ever for participants in the CBD market to know where their product is coming from and to document their testing and labeling methodologies.
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Last week, in what may be the first of its kind, a putative class of Massachusetts consumers filed a false labeling class action complaint against Global Widget LLC, d/b/a Hemp Bombs (“Hemp Bombs”) (Ahumada v. Global Widget LLC, D. Mass. Case No. 1:19-cv-12005), challenging the labeling of numerous Hemp Bombs products, including gummies, lollipops, capsules, syrup, vape and pet products.
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While the legal landscape continues to evolve in the cannabis industry, making entry into the space a potentially risky proposition, the passage of the Agriculture Improvement Act of 2018 (the “Farm Bill”) can be a real game changer in attracting mainstream companies to the industry.
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