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CBD Marketing Went Too Far, and New Lawsuits Might Take It Down

What will become of all those mall kiosks?

by Hannah Smothers
Jan 6 2020, 1:47pm

Adam Berry / Contributor via Getty

CBD may not have died in 2019 (the VICE-decreed Year of CBD, when the various tinctures and candies and infused leggings were ubiquitous past the point of annoyance), but it might happen in 2020. After the FDA sent 15 warning letters to various CBD manufacturers in November 2019 for selling products in ways that violate the Food, Drug, and Cosmetic Act, a new spate of particularly vicious class action lawsuits cropped up. Unlike previous suits—most of which targeted things like false claims about the amount of CBD in a product, or what CBD products claim to do—these new lawsuits are focused on the simple fact that products contain CBD in the first place.

The lawsuits, which have been filed against at least four manufacturers, including two of the largest (Charlotte’s Web and CV Sciences), are written in a way that would include all American customers who’ve purchased CBD products made by the companies, and ask a judge to force the given manufacturer to refund all profits earned on CBD-containing products. The plaintiffs argue that they were sold illegal products, and if a judge agrees, it would be a big blow to the relatively new but wildly popular CBD industry.

Law blogs seem quite interested in how all of this plays out. If successful, the suits will essentially act as vigilante FDA regulations: If judges find in favor of consumers, the suits would go beyond asserting CBD is a health scam, and argue that anyone who’s bought a CBD-containing product was duped into purchasing an illegal substance. Bloomberg Law warns of copycat suits targeted at other health substances, if this wave is successful. As one natural products and supplements industry leader told Stat News, the lawsuits could also make all those CBD stores and kiosks that have popped up in the past few years go away (which might not actually be such a bad thing, given that the science on CBD’s effectiveness remains so inconclusive).

By now, CBD manufacturers should be accustomed to being in hot water; since there’s basically no published science proving any health effects (a lot of studies are underway), CBD products can’t claim to fix or heal any issues. The best CBD companies can do is make vague promises about giving users a chill feeling, or reducing non-real health problems like feeling antsy. As staff writer Anna Merlan previously reported for VICE, lawsuits have taken aim at the amount of advertised versus actual CBD in certain products. This seems to be at least part of the current problem: While CBD companies can’t make health claims themselves, whether influencers can remains a gray area. The small amount of research that exists so far shows that CBD only starts to affect anxiety (an oft-made claim by CBD manufacturers and the influencers who hawk their products) at high levels that aren’t found in most, if any, products. A persona would have to eat something like 60 Sunday Scaries CBD gummies, for instance, to reach the threshold shown to perhaps reduce anxiety symptoms in prior surveys.

The FDA has reportedly been targeting companies that make baseless health claims about their CBD products, which are a direct violation of basically every rule that exists in this country about dietary supplements. But it’s not clear what has actually happened to those companies. VICE’s previous report on the shady marketing antics of CBD companies pointed out that Sunday Riley, when found guilty of paying for fake reviews, got little more than a slap on the wrist; there’s little incentive for companies to play by the rules, especially when, in CBD’s case, the rules are still so vague.

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