Feds Warn About Copycat Packaging of Delta-8 THC Edibles
/By Crystal Lindell
The U.S. government is once again going after companies that sell Delta-8 THC edibles in packaging that looks like popular brand name candy and snacks.
The Food and Drug Administration and the Federal Trade Commission sent warning letters to five companies for selling copycat food products containing delta-8 THC derived from hemp.
For example, one company was selling a package of “Slizzles” edibles that looks strikingly similar to “Skittles” candy. Another company sold a “Double Stuff Stoneo” product in packaging that looks like “Oreo” cookies.
The cease and desist warning letters were issued to Hippy Mood, Earthly Hemps, Shamrockshrooms, Mary Janes Bakery and Life Leaf Medical CBD Center.
“Inadequate or confusing labeling can result in children or unsuspecting adults consuming products with strong resemblance to popular snacks and candies that contain delta-8 THC without realizing it,” FDA Principal Deputy Commissioner Namandjé Bumpus, PhD, said in a statement.
“As accidental ingestion and/or overconsumption of Delta-8 THC containing products could pose considerable health risks, the companies who sell these illegal products are demonstrating complete neglect for consumer safety.”
Delta-8 THC is derived from hemp, which Congress legalized in the 2018 Farm Bill. Hemp contains only trace amounts of THC, the psychoactive ingredient in cannabis, so the thinking was that hemp would only be used to make cash products such as rope, clothing and horse feed. It didn’t take long, however, for cannabis companies to develop a synthetic form of hemp-derived THC that is just as potent as regular THC.
Efforts are underway to close that loophole in the next Farm Bill, but in the meantime delta-8 THC products remain legal under federal law, although some individual states have banned them.
In 2022 and 2023, the feds issued similar warnings against other companies marketing Delta-8 THC edibles. Although those products were withdrawn from the market, other companies have stepped into the void and began selling similar ones.
The FDA and FTC say the copycat branding of delta-8 edibles violates federal laws against unfair or deceptive marketing, including practices that present health or safety risks. The agencies say children are particularly vulnerable, because they might not realize the edibles contain THC.
“Companies that market and sell edible THC products that are easily mistaken for snacks and candy are not only acting illegally, but they are also putting the health of young children at risk,” said Samuel Levine, director of the FTC’s Bureau of Consumer Protection. “Those that prioritize profits in front of children's safety are at serious risk of legal action.”
Industry groups that represent companies that have seen their branded products mimicked have come out against this type of copycat packaging. The Consumer Brands Association (CBA) has a position paper on its website specifically addressing THC edibles that mimic popular brands.
“Companies are unequivocally opposed to their brands being illegally used in products containing THC,” the CBA writes. “But rooting out these bad actors is like a game of whack-a-mole. By the time a company or government entity goes after them, their local storefront or online presence disappears and they pop up with a new name and new site.”
The issue goes beyond simple copyright infringement. The CBA cites recent data showing that national poison control centers handled nearly 10,500 incidents involving products laced with THC. Of those cases, 77% involved consumers 19 years old or younger.
“The urgency of this issue is not about intellectual property infringement, but about how that infringing use of trusted food brands creates a direct threat to consumer safety — particularly that of children,” the CBA says. “As incidents of children being hurt by lookalike products that endanger them increase, greater enforcement is necessary.”
The National Confectioners Association (NCA) has also warned about cannabis companies using packages that looks like popular candy and snacks.
Edibles may deliberately mimic the trade dress of beloved consumer brands,” the NCA said. “It is often very difficult to distinguish these edibles from conventional foods and beverages, resulting in confusion and injury to consumers, including children, and reputational damage to food companies.”
The NCA says it is difficult and costly for companies to try to protect their brands in this situation, because it requires “state-by-state surveillance” and “burdensome legal action.”
The FDA is also concerned about the processes used to synthesize delta-8 THC, as impurities or variations in the processing can result in products that may be harmful or have unpredictable effects. The agency has requested written responses from the companies within 15 working days stating how they will address these violations and prevent their recurrence.
