The Dark Side of Cannabis Edibles: How Fake Packaging Can Mislead Consumers and Harm Children

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..

States are also taking measures to regulate and enforce against cannabis edibles that are attractive to children. California has established the Unified Cannabis Enforcement Taskforce (UCETF), which is responsible for cracking down on the illegal cannabis market. See Unified Cannabis Enforcement Taskforce (UCETF), Dep’t. of Cannabis Control Cal., (last visited Sept. 23, 2024). In August 2024, the UCETF seized 2.2 million empty cannabis packages designed to mimic popular candy and treats available for sale in downtown Los Angeles’ Toy District. Hannah Fry, California Seizes 2.2 Million Illicit Cannabis Packages Designed to Look Like Candy, Sweets, Los Angeles Times (Aug. 14, 2024, 1:36 PM PT),. The packaging bore a forged California marijuana seal, giving the false impression the State of California had vetted the goods.  California explicitly prohibits this type of packaging and labeling, designed to appeal to children or that can be easily mistaken for commercially sold candy, snacks, and treats that do not contain cannabis, under its Medicinal and Adult-Use Cannabis Regulation and Safety Act. See Medicinal and Adult-Use Cannabis Regulation and Safety Act, Cal. Bus. & Prof. Code § 26000 (West 2023).

Another state taking action is North Carolina through House Bill 563, which was introduced in 2023. H.B. 563, 2023 S. Gen. Assemb., Reg. Sess. (N.C. 2023)The bill would impose licensure requirements on the sale of hemp-derived consumables in the State and address the availability of substances harmful to minors. Id. The proposed bill would also prohibit the use of advertising and packaging with imagery known to appeal to minors, including “any imitation of the packaging or labeling of candy, cereals, sweets, chips, or other food products typically marketed to persons under 21 years of age.” Id. § 18D-105(d). In June 2024, the bill cleared the Senate vote with bipartisan support and has been referred to the Rules Committee. House Bill 563, N.C. Gen. Assembly (last accessed Sept. 25, 2024).

Brand Owners Step In

In addition to the government actions, brand owners also have a duty to protect their trademarks from infringement and dilution. This includes monitoring and stopping unauthorized uses of similar marks or packaging that could cause confusion, deception, or mistake about the affiliation, connection, origin, sponsorship, or approval of their goods, services, and commercial activities, as outlined in the Lanham Act, 15 U.S.C. §§ 1051 et seq.

Companies in the food, snack, and candy industry have filed lawsuits against the makers and distributors of cannabis edibles that imitate their brands and infringe their trademarks and trade dress. In 2022, Ferrara Candy Company, the maker of popular candies like Nerds®, Trolli®, and Runts® candies, filed a lawsuit against Akimov, LLC (d/b/a/ Top Five) in the Southern District of Florida, alleging federal counterfeiting, trademark and trade dress infringement, trademark dilution, unfair competition, and violations of related state laws. See Complaint, Ferrara Candy Co. v Akimov, LLC d/b/a Top Five Wholesale, No. 9:22-cv-80768 (S.D. Fla. Oct. 27, 2022) (No. 1-13).

According to Ferrara’s complaint, Akimov was selling numerous counterfeit copycat candy items online to customers nationwide and in Florida, including the counterfeit products below.

Ferrara asserted that the counterfeit candy items copied its trademarks, distinctive packaging, and the federally registered trade dress associated with its rope-like candies.

Ferrara secured a judgment and permanent injunction against Akimov, LLC d/b/a Top Five Wholesale in which Akimov stipulated that Ferrara markets it candies for consumption by children. Judgment and Permanent Injunction.

Ferrera claimed that the resemblance of Akimov’s lookalike products to Ferrara’s brands was so striking that consumers have actually confused these THC-infused candies with Ferrara’s real product.. Ferrara also asserted that in some cases Akimov’s products contained THC levels exceeding 60 times the amount of an adult serving, posing a health hazard to the public, especially children.. Ferrara further asserted that the sale of these dangerous products “poses a health hazard to the consuming public, especially children.”

Other candy and snack companies have also taken action against cannabis edible makers and distributors selling goods that mimic their brands. In May 2021, Mars Wrigley, the maker of Skittles® candies, sued Terphogz, the makers of the marijuana strain “Zkittlez,” and unknown retailers that sold the “Zkittles” products. See First Amended Complaint, WM. Wrigley Jr. Co. v. Terphogz, LLC et al., Case No. 21-CV-02357 (N.D. Ill. July 11, 2023) (No. 12-61). Mars brought claims of direct and contributory trademark infringement and dilution, false designation of origin, and unfair competition, as well as claims of cybersquatting, and related state law violations. Id. Mars complained that Terphogz copied its branding with the substantially similar mark “Zkittlez,” the same Taste the Rainbow® slogan and S logo®, along with the same red packaging and candy colors as the Skittles® brand to manufacture and distribute cannabis, cannabis- and cannabidiol (CBD)-related goods, drug paraphernalia, clothing, and merchandise that it sold at its zkittlez.com website.. Mars alleged that “[u]nscrupulous companies like Terphogz who push drugs and drug paraphernalia using trademarks belonging to confectionery companies pose a danger to children.”. Mars and Terphogz ultimately settled.

Another snacking company, Mondelez Canada, Inc., the manufacturer of Sour Patch Kids® candies, sued multiple unknown defendants involved in manufacturing the product packaging for “Stoney Patch” gummies, a copycat THC-infused product. See Complaint, Mondelez Canada Inc. v. Stoney Patch et al., No. 2:19-cv-06245 (C.D. Cal. May 8, 2020) (No. 1-38). Mondelez filed claims for trademark and trade dress infringement, dilution, unfair competition, and related state law claims against the defendants and alleged that the replica “Stoney Patch” packaging was designed to attract children. See First Amended Complaint ¶ 7, at 3 (No. 18-38). Mondelez also alleged the empty packaging was falsely marked as compliant with state laws, even though the defendants had no way of knowing or controlling whether the consumables that would be placed in the packing are dangerous.. Mondelez asserted that the danger caused by the gummies and empty packaging has already been shown because several children had been hospitalized from consuming the gummies.. Mondelez secured judgment against certain defendants but dismissed the action as to the unknown defendants.

Collaboration is Key

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. This practice endangers children and consumers who may be misled by the packaging and labeling of these products and exposes brand owners to trademark infringement, dilution, and reputational harm. Legislation and courts could regulate and penalize the cannabis market more effectively by imposing clear rules and severe damages for products that resemble candy and snack brands and lack adequate warning labels about THC and its risks. Brand owners could also cooperate with competitors by forming industry coalitions to monitor and report infringing products, thereby protecting to protect their trademarks and goodwill from this unlawful and harmful practice. The safety of children and public health concerns should be a priority for all stakeholders involved.

Image Source: Deposit Photos
Author: Viennetta
Image ID: 346330726