Earlier this month the Federal Trade Commission (FTC), in conjunction with the U.S. Food and Drug Administration (FDA), sent warning letters to six companies that are currently selling edible products containing Delta-8 tetrahydrocannabinol (THC). The FTC is taking issue with the packaging for these edible products, which is nearly identical to the packaging of snacks and candy that children eat.

The letters sent to the various companies, located across the U.S. in New Jersey, California, North Carolina, Missouri, New Mexico, and Virginia, advise that the FDA has determined that the Delta-8 THC-containing products sold are adulterated under the Federal Food, Drug and Cosmetic Act (FDCA) because they contain an unsafe food additive. The letters state that introducing adulterated food into interstate commerce is prohibited under the FDCA.

In addition to the fact that these products have not been evaluated or approved as safe by the FDA, it is of particular concern that children may mistakenly consume the products. The companies cited in the FTC's recent press release sell products in packaging that mimics that of Doritos brand tortilla chips, Cheetos snacks, or Nerds candy. The letter demands that the companies immediately cease marketing products that imitate conventional foods by using packaging that appeals to children.

According to the FTC's July 2023 press release, Samuel Levine, director of the FTC’s Bureau of Consumer Protection, cautioned that “[c]ompanies must ensure that their products are marketed safely and responsibly, especially when it comes to protecting the well-being of children."

Press Release at paragraph 6. Dr. Smoke THC Infused Doritos

In addition to the serious health risks to children and others, marketing products containing Delta-8 THC in packaging that mimics well known snack brands may constitute trademark infringement and unfair competition, enabling brand owners to file commercial claims to protect their rights.