Charlotte Web : CBD Companies Now Facing Monetary Penalties For Deceptive Marketing, Will Civil Liability Follow?
May 18, 2021 at 11:11 am
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The Federal Trade Commission ("FTC") has joined the U.S. Food and Drug Administration ("the "FDA") in enforcing laws related to marketing CBD products. The FDA has historically issued warning letters and pursued companies that illegally market CBD products with claims the products may treat medical conditions. The FTC has joined the FDA is this pursuit and announced settlements with six different CBD companies involves fines ranging between $20,000-$85,000 in addition to notifications provided to consumers. Pursuant to these settlement agreements the respondent companies are also prohibited from similar marketing efforts in the future, any health claims must have scientific evidence to support them.
Industry actors making any health or therapeutic claims are vulnerable to action by agencies such as the FDA and FTC, however, they may also be subject to civil suits based on enforcement by those agencies. In April of 2020 Charlotte's Web Holdings, Inc. ("CWB") was served with yet another (its second) class action lawsuit due to how their products are labeled. Benson v. Charlotte's Web Holdings, Inc., No. 1:20-cv-00418 (N.D. Ill.) The suit based a significant portion of the allegations on FDA guidance:
"Based on available evidence, FDA has concluded that THC and CBD products are excluded from the dietary supplement definition under section 201(ff)(3)(B) of the FD&C Act [21 U.S.C. § 321(ff)(3)(B)]. Under that provision, if a substance (such as THC or CBD) is an active ingredient in a drug product that has been approved under section 505 of the FD&C Act [21 U.S.C. § 355], or has been authorized for investigation as a new drug for which substantial clinical investigations have been instituted and for which the existence of such investigations has been made public, then products containing that substance are excluded from the definition of a dietary supplement"
Companies facing enforcement actions by the FTC may similarly be subject to civil allegations.
WHAT DOES THIS MEAN FOR YOUR BUSINESS
If your business operations involve the sale of CBD products it is imperative that any marketing, advertising, or labeling is not labeled as a dietary supplement and is free of any health or therapeutic claims. If you have any questions on how to avoid similar liabilities contact Steve Levine, Alyssa Samuel or your Husch Blackwell attorney.
Originally published 20 January 2021.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr Steven N. Levine
Husch Blackwell LLP
1801 Wewatta Street, Suite 1000
Denver
CO 80202
UNITED STATES
Charlotte's Web Holdings, Inc. (Charlotteâs) is engaged in providing hemp extract wellness products under a family of brands which includes Charlotteâs Web, CBD Medic, CBD Clinic, and Harmony Hemp. Charlotteâs Web branded products start with its hemp genetics that are 100% North American farm grown and manufactured into hemp extracts containing naturally occurring phytocannabinoids, including cannabidiol (CBD), cannabichromene (CBC), cannabigerol (CBG), cannabinol (CBN), terpenes, flavonoids and other beneficial hemp compounds. Charlotteâs Web product categories include full spectrum hemp extract oil tinctures (liquid products), gummies (sleep, calm, immunity, exercise recovery, daily wellness, THC-free), capsules, topical creams and lotions, as well as CBD pet products for dogs. Charlotteâs Web products are distributed to retail outlets and health care practitioners, as well as online through the Companyâs Website at www.Charlottesweb.com.