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Last week, a bipartisan cohort of 23 state attorneys general (AGs) urged Congress to tackle the growing issue of THC products marketed and packaged like name-brand snacks and candies.
In their bipartisan letter, led by Nevada Attorney General Aaron D. Ford and Virginia Attorney General Jason Miyares, the group of AGs raised their growing concern about the serious health and safety risks “copycat” THC edibles pose, particularly to children. Because the packaging of these edibles mimics that of well-known snacks by using similar names, logos, or pictures, it is difficult — even for a keen adult eye — to distinguish these edible products from the authentic brands.
For months now, federal and state regulators have seen an uptick in accidental ingestion of THC by minors. According to a recent safety advisory released by the U.S. Food and Drug Administration (FDA), of the 2,362 exposure cases reported to the national poison control centers between January 1, 2021, and February 28, 2022, 41% involved pediatric patients under 18.
For example, in March, three Virginia parents learned that their children’s lethargic behavior was due to the inadvertent consumption of THC-laden Goldfish crackers received at their childcare facility. In South Carolina, in the fall of 2021, an elementary teacher inadvertently distributed to students THC-infused candies that mimicked the popular “Sour Patch Kids” brand. In Elkhart, Indiana, in August 2021, a toddler was hospitalized after accidentally ingesting a bag of “Cheetohs” laced with more than 600 mg of THC. And in December 2020, a 3-year-old was admitted to the ICU after consuming a copycat Nerds Rope.
As the adverse event that occurred in Indiana shows, illicit products are often infused with levels of THC that dramatically exceed legal limits under state laws. In addition, because these products are manufactured illegally, they do not meet the stringent safety and manufacturing requirements imposed by states that regulate these products.
Although the AGs do not all agree on the best regulatory scheme for cannabis and THC-infused products — some legalized these products while others strictly ban them — all the AGs agree on one thing: “Congress should immediately enact legislation authorizing trademark holders of well-known and trusted consumer packaged goods to hold accountable those malicious actors who are using those marks to market illicit copycat THC edibles to children.”
Under existing laws, consumer-packaged goods manufacturers lack the legal tools to go after counterfeiters or after the e-commerce platforms where these products are sold to end-use consumers. Moreover, the patchwork and discrepancies between federal and state cannabis regulatory schemes exacerbate the confusions for consumers.
Several major food and beverage companies, including PepsiCo, General Mills, and Kellogg’s, raised similar concerns regarding these misleading marketing trends with Congress. In a separate letter dated April 27, 2022, these companies requested action to address the copycats and proposed to amend the Stopping Harmful Offers on Platforms by Screening Against Fakes in E-commerce Act of 2021 (SHOPPE SAFE Act), a bill that establishes contributory trademark liability for online marketplaces based on the sale of counterfeit products by third-party sellers on their platforms to include “famous” marks that do not necessarily meet the definition of “counterfeit.”
The letters from both the AGs and the major food and beverage companies show that federal and state authorities, along with the private sector, can and should play a cooperative role in protecting consumers from the dangers presented by counterfeited products. A fundamental purpose of federal trademark laws is to protect consumers from fraudulent goods through trademark registration and enforcement actions. But this legal tool requires a layered approach that involves a wide range of stakeholders to effectively rein in this growing health and safety issue.
Nathalie Bougenies focuses her practice on health and wellness, in addition to corporate transactions and regulatory compliance. For the past four years, Nathalie has helped clients navigate the complex regulatory landscape of hemp products intended for human consumption and advises domestic and international clients on the sale, distribution, marketing, labeling, and importation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s “Marketplace.” She also authors a weekly column for “Above the Law” that features content on cannabis policy and regulation. For four consecutive years, Nathalie has been named Rising Star by Super Lawyers.
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