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By Elissa B. Haynes and Carlos A. Fernández
Your car won’t start. A mechanical engineer, a NASCAR podcaster, and mechanic walk into your garage to help you—we’re assuming you have a diverse set of friends willing to help. The mechanical engineer downloads your car’s electronic information and gets to work on a blueprint to rebuild your engine. The NASCAR podcaster says it’s a problem with your engine because he’s heard pit crews diagnose a similar situation. The mechanic pops the hood and says you need oil. Generally, in life we rely on the “right” expert to help us with specialized problems. In the legal field we should do the same.
Recently, products such as CBD (cannabidiol), kratom, and new workout supplements form the basis of product liability lawsuits. The crux of each of these lawsuits is whether the subject supplement is safe. Who should determine whether these supplements are safe: a judge or the Food and Drug Administration (FDA)? If you said “FDA,” then how can a case continue forward if the FDA has not issued a final ruling on the supplement?
Enter primary jurisdiction. Primary jurisdiction is a doctrine that states a court could defer a specialized question to an administrative agency, or regulatory body, that is equipped to answer the question. While the doctrine is discretionary, a court will weigh 1) the need to resolve an issue that, 2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority, 3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory scheme that, 4) requires expertise or uniformity in administration. If a court decides to defer to the special competence of an administrative agency, it will either stay the case or dismiss the complaint without prejudice, pending the resolution of the underlying issue.
The complex question of whether a court should invoke the doctrine of primary jurisdiction is more prevalent than ever before with the rising number of product liability cases involving CBD, kratom, and other cutting-edge supplements. While we leave the question of safety to the experts, these supplements are being sold in every day items and your business could end up as a defendant in one these product liability lawsuits.
It is important for businesses and individuals to stay informed about legal developments and potential liability related to CBD, kratom, and other cutting-edge supplements. If you would like a copy of court orders regarding primary jurisdiction, please contact Elissa B. Haynes at [email protected] or Carlos A. Fernández at [email protected].