Consumers Push to Advance CV Sciences Suit

By Willis Jacobson
Dec 6, 2020

The plaintiffs suing CBD company CV Sciences have asked a federal judge to end an indefinite stay on the suit, arguing that waiting on regulatory clarity from the U.S. Food and Drug Administration (FDA) will not change their claims.

  • Two consumers – one from California and one from Arizona – who said they purchased CBD softgels and a CBD spray from CV Sciences in 2018, initially filed the proposed class action suit against the San Diego-based company in December 2019 on grounds that its CBD products were illegally labeled as dietary supplements and/or illegally contained CBD as a dietary ingredient.
  • The plaintiffs accuse the company of a host of charges, including violations of California laws against false advertising and unfair competition, and violation of the Arizona Consumer Fraud Act. They claim that if they had known the products were not legal for sale in the U.S., they wouldn’t have bought them.
  • The FDA prohibits the use of CBD in edibles and does not allow CBD products to be marketed as dietary supplements, according to the lawsuit.

In May, U.S. District Judge Virginia Phillips, who is presiding over the case in the Central District of California, granted CV Sciences’ request for an indefinite stay “until the FDA completes its rulemaking regarding the marketing, including labelling, of CBD ingestible products.”

  • In their latest request to continue with the suit, filed Nov. 30, the plaintiffs argue that the FDA has “consistently remained firm” in its position that it is illegal to sell CBD products as dietary supplements and that is “highly unlikely” to change soon.
  • CV Sciences argued the case should remain stayed since the factors that led to Judge Phillips’ order in May have not changed. “The FDA has not completed the relevant rulemaking,” the company said.

It was not immediately clear if or when Judge Phillips would respond to the request.

  • The plaintiffs initially sought declaratory relief, claiming they faced a threat of future harm because they desire to purchase CBD products in the future but will be unable to trust the labeling on CV Sciences’ products. Judge Phillips dismissed that request in May, ruling it lacked standing since any future purchases of CV Sciences products by the plaintiffs would be with full knowledge of the company’s alleged misconduct.

The lawsuit is one of at least three proposed class actions filed in federal courts – in California and Florida – over the past year against CBD companies alleged to have violated FDA guidelines. Judges in each of those three cases issued stays to await the FDA’s final rules on CBD.

  • The FDA has not given an indication of when it may adopt its final rules for CBD products. In a March update regarding its position on CBD, the agency said only that it was still evaluating potential policy elements.