Warning to companies selling cannabis edibles packaged like snacks popular with kids: Put safety over sales

The packages look like candy and snacks that kids like – for example, Double Stuf Oreos, Jolly Ranchers, and Chips Ahoy! cookies. But what’s inside are cannabis edibles containing Delta-8 tetrahydrocannabinol (THC), products that children most definitely shouldn’t be eating. The FTC and FDA just sent joint cease-and-desist letters to five companies selling edibles masquerading as popular snacks. The letters cite chapter and verse from the FTC Act and the Federal Food, Drug, and Cosmetic Act, but the overarching message is unmistakable: Stop it now.

Let’s be clear from the get-go. The companies that sell the genuine food products have nothing whatsoever to do with these look-alikes. Rather, their brands and trademarks have been hijacked by marketers selling copycat items that put kids at risk.

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As the cease-and-desist letters explain, the particular concern here is that packaging that mimics the look of popular snacks creates “a risk of unintended consumption of the Delta-8 THC ingredient by consumers.” Kids are in particular danger “because they are more likely to focus on similarities of product appearance and packaging, and less likely to notice or be able to comprehend labeling text.”

The concern isn’t hypothetical. The FDA has received numerous reports of children ending up in the hospital after eating what they thought was a favorite treat, but really was a Delta-8 THC-laced look-alike.

You’ll want to read the letters for the details, but according to the FDA, a food additive is considered “unsafe” under the Federal Food, Drug, and Cosmetic Act unless the FDA has approved it before marketing for its intended use. Delta-8 THC hasn’t been approved for use in any conventional food. Thus, because they contain an unsafe food additive, the products the companies are selling are “adulterated” within the meaning of the law – and are therefore illegal.

From the FTC’s perspective, Section 5 of the FTC Act prohibits unfair or deceptive acts or practices. As the letters establish, “This prohibition includes practices that present unwarranted health or safety risks.” What’s more, preventing practices that put kids at risk “is one of the Commission’s highest priorities.” Given the number of adverse event reports the FDA has received about products containing Delta-8 THC, the FTC staff warns the recipients of the letters that “advertising and packaging your Delta-8 THC products in a manner that is likely to be particularly appealing to young children could present an unwarranted risk to health and safety,” in violation of the FTC Act.

Five sellers of these products received cease-and-desist warnings: Pennsylvania-based Hippy Mood; South Carolina-based Life Leaf Medical CBD Center; online only seller Shamrockshrooms.com; Florida-based Mary Janes Bakery Co. LLC and Miami Rave LLC, and Florida-based Earthly Hemps.

The FTC staff’s demand of those companies is unequivocal: “You must immediately cease marketing edible Delta-8 THC products that imitate conventional foods using advertising or packaging that is likely to be appealing to young children.” The FTC also “strongly urges” those companies “to review all of [their] marketing and product packaging for similar edible THC products, and to take swift and appropriate steps to protect consumers, especially young children.” This isn’t the last you’ll hear from us, says the FTC. Companies must contact FTC staff within 15 business days to explain “the specific actions [they] have taken to address the FTC’s concerns.”

The FDA also expects to hear from the companies immediately. According to the FDA, “Failure to adequately address this matter may result in legal action including, without limitation, seizure and injunction.”

These cease-and-desist letters send important messages to others in the fledging – but burgeoning – cannabis industry.

No, it’s not the “wild west” out there. You’ve probably heard the canard that when it comes to the retailing of cannabis-related products, it’s the “wild west.” Utterly untrue. Long-standing consumer protection and public health principles apply and there are multiple sheriffs in town to see that your company is in compliance. Familiarize yourself with established FTC and FDA law and review your practices now.

Heed warnings issued to others in your industry. This isn’t the first time the FTC and FDA have warned companies about packaging Delta-8 THC-laced products to look like snacks popular with kids. Just last year the agencies sent joint letters warning six retailers about exactly the same kind of practices. One warning should have been enough and savvy industry members – whether they received a letter or not – should have taken that as a signal to clean up their own marketing efforts. How many more ER visits and hospitalizations will it take before sellers of these copycat products get the message?

Educate your community about the risks these products pose. Businesses executive who aren’t involved in the cannabis industry can play an important role in helping to protect kids in their community. Here is advice you can share with friends or family members who choose to buy edibles:

• Store cannabis edibles separately from other foods and keep them in their original packaging. Completely reseal the packaging after each use.
• Securely store edibles in child-proof cabinets and drawers just as you would household cleaning and laundry supplies. Don’t leave them out where hungry little hands can reach them.
• Talk to family and friends about the danger cannabis edibles pose to kids – both children who live in the home and youngsters who may visit. (And while you’re at it, remind them to keep the products away from pets, too.)

To learn more, read the FDA’s 5 Things to Know about Delta-8 Tetrahydrocannabinol – Delta-8 THC.