AUTHORS
“Brand owners, government agencies, and law enforcement need to collaborate to combat the trend of selling cannabis edibles that imitate popular brands, which poses a serious legal and public health issue.”
As more states legalize recreational marijuana, the incidence of children accidentally ingesting cannabis edibles has also risen dramatically. According to Pediatrics, a journal published by the American Academy of Pediatrics, the number of children under six years old who have consumed cannabis products surged by 1,375% from 2017 to 2021. See Marit S. Tweet et al., Pediatric Edible Cannabis Exposures and Acute Toxicity: 2017–2021, Pediatrics (Jan. 3, 2023). Children between the ages of two and three years old were at the highest risk.
A key factor contributing to this hazard is the growing sales of cannabis edibles that resemble and are packaged to look like popular candy, snack brands, and breakfast cereals. These cannabis edibles not only infringe the trademarks and trade dress of the legitimate and famous brands, but also pose a significant risk to public health and safety, especially for children who may be attracted by the familiar appearance and packaging.
Government Action
The Federal government has acknowledged the danger this trend poses to children and has taken action against dispensaries selling cannabis products designed to appeal to children or that mimic the packaging of popular candies and snacks. In July of this year, the Federal Trade Commission (FTC), jointly with the Food and Drug Administration (FDA) sent a second round of cease-and-desist letters to businesses selling products in packaging that imitate treats and snacks that appeal to young children and which contained delta-8 THC, a psychoactive compound derived from hemp that is not approved by the FDA. See Press Release, Federal Trade Commission, FTC and FDA Send Second Set of Cease-and-Desist Letters to Companies Selling Products Containing Delta-8 THC in Packaging Designed to Look Like Children’s Snacks (July 16, 2024).
Earthly Hemps in Cape Coral, FL received one of these letters for selling THC-adulterated items, including “SLUSHERS” fruit snacks and “WEEDOS” chips sold in packaging that was allegedly identical in appearance of Frito-Lay’s Flamin’ Hot® Cheetos® snacks. See Letter from Ann M. Oxenham, Dir., Off. of Compliance, Ctr. for Food Safety and Applied Nutrition, Food and Drug Admin., and Serena Viswanathan, Assoc. Dir., Div. of Advert. Prac., Fed. Trade Comm’n, to Robert Waring, Earthly Hemps (July 12, 2024). The joint letter from the FTC and FDA stated that these products are likely to confuse consumers, especially children who are “more likely to focus on similarities of product appearance and packaging, and less likely to notice or be able to comprehend labeling text.”. at 5. It also warned that imitating conventional foods using packaging that appeals to children is misleading and demanded Earthly Hemps cease the sale of these copycat products..
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The Dark Side of Cannabis Edibles: How Fake Packaging Can Mislead Consumers and Harm Children
