THC edibles that look like snacks popular with kids? FTC and FDA have something to say about that.

We’ve seen a lot of products in our day, but six companies that just received joint FTC-FDA cease and desist letters have earned a place in our “What The Heck Were They Thinking?” Pantheon. What did they do to merit that dubious distinction? According to the two agencies, the companies currently market edibles containing Delta-8 THC (yeah, that THC) with packaging and advertising that mimic the look of candy and snack brands popular with children.

First, a little basic chemistry. Delta-8 THC is a component of cannabis with similar psychoactive and intoxicating effects as Delta-9 THC – the substance responsible for the high people get from cannabis. In June 2022, FDA issued a warning about the health risks to children of ingesting foods containing THC. FDA’s concern isn’t hypothetical, with numerous poison control calls and adverse event reports stemming from kids’ eating THC-laced products by accident. Some of the reports specifically mentioned that the edible was a copycat of a brand-name food.

Speaking of copycats, let’s be clear: The major national brands whose foods have been imitated by the products cited in the cease and desist letters have absolutely nothing to do with the sale of the lookalikes. But a picture being worth a thousand words and all, take a look at just a few examples to see what has the FTC and FDA so concerned about these THC products. Do they bear a strong resemblance to snack foods popular with kids, including Cheetos, Double Stuf Oreos, Jolly Rancher Gummies, and Sour Patch candies? That’s central to the FDA-FTC concerns.

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You’ll want to read the letters for details about why FDA views these products as “adulterated human foods.” FDA has given the companies 15 working days to notify them in writing “of the specific steps you have taken to address any violations.”

 The FTC approaches the issue from Section 5’s prohibition on unfairness and deception, including “practices that present unwarranted health or safety risks.” Here’s how FTC staff described its concern:

Children are at particular risk for mistakenly ingesting edible THC products imitating traditional foods 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. . . . Given the significant number of adverse events reported in connection with ingestion of edible products containing THC, advertising and packaging your [product] in a manner that is likely to be particularly appealing to young children could present an unwarranted risk to health and safety.

The FTC has directed the companies to “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 letters give the companies 15 days to explain the specific actions they’ve taken to address these issues.

The letters went to: 

• Delta Munchies LLC (Los Angeles, California);
• Exclusive Hemp Farms (Gilroy, California) and Etienne-DuBois, LLC/Oshipt (Henrico, Virginia);
• North Carolina Hemp Exchange (Raleigh, North Carolina);
• Dr. Smoke, LLC (Kansas City, Missouri);
• Nikte’s Wholesale, LLC (Albuquerque, New Mexico); and
• The Haunted Vapor Room (Franklin, New Jersey).

 The message to other companies should be apparent.

 First, consumer health and safety is paramount, especially when it comes to kids.

Second, newcomers to the cannabis industry, let us introduce you to the Federal Trade Commission Act and the Federal Food, Drug, and Cosmetic Act. Your product sector may be new, but you must conduct your business within established laws designed to protect the public from deceptive marketing practices and adulterated foods.

Third, we suggest you get your legal house in order now.