Last November, WLF hosted a Webinar, “Safeguarding Trademarks and Consumers from Rogue Edible-Cannabis Sellers,” that featured Stacy Papadopoulos of the Consumer Brands Association and Andrew Kline, Cannabis Industry Group Co-Chair at the law firm Perkins Coie LLP. They discussed the consumer-product and regulated cannabis industries’ strategic response to the proliferation of THC-containing edibles sold in packaging that resembles well-known candy and other food brands. The panelists spoke about the need for private-public partnerships and awareness-raising, as well as actions some states and federal agencies had taken.
On July 5, 2023, the federal government took another notable step in the fight. The Federal Trade Commission and the Food and Drug Administration sent joint warning letters to six companies that market Delta-8 THC-containing edibles in packaging that children could easily confuse for legitimate snacks and candies. Among the products whose packaging the companies blatantly copy are Doritos, Cheetos, Nerds Rope Candy, and Jolly Ranchers Gummies.
FTC alleges in the warning letters that each recipient violated Section 5 of the Federal Trade Commission Act, which prohibits unfair or deceptive acts or practices that affect commerce. Specifically, the letter states, “Imitating non-THC-containing food products often consumed by children through the use of advertising or labeling is misleading,” citing a 1984 Policy Statement on Deception. The letter commands that the recipients “immediately cease marketing” of the noted edible THC products.
The letter also concludes that the products are adulterated under the Food, Drug & Cosmetic Act because they include Delta-8 THC, an unapproved food additive. FDA has neither determined that Delta-8 THC is generally recognized as safe nor that it otherwise qualifies for an exception listed in FDA regulations. FDA requests that the product marketers contact the agency within 15 days to explain the steps they have taken to address the alleged violations.