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CBD False Advertising Claims Stayed Pending Further FDA Guidance

Client Alert | 1 min read | 02.04.20

With the recent rise of federal Food & Drug Administration (FDA) warning letters to the manufacturers of various ingestible cannabidiol (CBD) products, we can expect an increase in false advertising claims against manufacturers, distributors and sellers of those products. Nonetheless, in an important case of first impression in this arena, a federal trial court in the Southern District of Florida recently stayed a false advertising class action against a seller of CBD products under the “primary jurisdiction” doctrine.

The primary jurisdiction doctrine applies when a plaintiff’s claims require a federal agency’s expertise or guidance with respect to a regulated product. Cases are often stayed under the doctrine when relevant federal legislation is pending or applicable regulations are under review. However, other courts have declined to stay cases under primary jurisdiction when the government’s timing for issuing its guidance is unclear, or regulatory review has been pending for an overlong period.

Regulatory oversight of CBD ingestible products is currently vested in the FDA. Thus, although the state of Florida had established labeling requirements for CBD products (effective January 1, 2020), the district court emphasized that (1) the FDA had clearly expressed its concern with respect to CBD (or other hemp-derived) product labels, (2) the FDA was under pressure from Congress and the hemp industry to expedite the publication of regulations and policy guidance, and (3) the FDA was actively considering the regulation of CBD products. Therefore, the court declined to rule on the merits of plaintiffs’ class action based solely on the Florida legislation and stayed the case until the FDA completes its rulemaking regarding the labeling of such products.

While it is difficult to predict the content of the FDA’s ultimate labeling requirements for CBD products, manufacturers and sellers of these products have another weapon in their arsenal for responding to potential class actions and mass tort claims, at least in the near term.

The case is Snyder v. Green Roads of Florida, LLC, Case No. 0:19-cv-62342-UU, 2020WL 4239 (S.D. Fl. Jan. 3, 2020).

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Client Alert | 5 min read | 12.12.25

Eleventh Circuit Hears Argument on False Claims Act Qui Tam Constitutionality

On the morning of December 12, 2025, the Eleventh Circuit heard argument in United States ex rel. Zafirov v. Florida Medical Associates, LLC, et al., No. 24-13581 (11th Cir. 2025). This case concerns the constitutionality of the False Claims Act (FCA) qui tam provisions and a groundbreaking September 2024 opinion in which the United States District Court for the Middle District of Florida held that the FCA’s qui tam provisions were unconstitutional under Article II. See United States ex rel. Zafirov v. Fla. Med. Assocs., LLC, 751 F. Supp. 3d 1293 (M.D. Fla. 2024). That decision, penned by District Judge Kathryn Kimball Mizelle, was the first success story for a legal theory that has been gaining steam ever since Justices Thomas, Barrett, and Kavanaugh indicated they would be willing to consider arguments about the constitutionality of the qui tam provisions in U.S. ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). In her opinion, Judge Mizelle held (1) qui tam relators are officers of the U.S. who must be appointed under the Appointments Clause; and (2) historical practice treating qui tam and similar relators as less than “officers” for constitutional purposes was not enough to save the qui tam provisions from the fundamental Article II infirmity the court identified. That ruling was appealed and, after full briefing, including by the government and a bevy of amici, the litigants stepped up to the plate this morning for oral argument....

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