On July 16, 2024, the U.S. Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) issued warning letters to six companies for illegally selling copycat food products containing delta-8 tetrahydrocannabinol (THC) and introducing them into the marketplace, violating the Federal Food, Drug, and Cosmetic (FD&C) Act.
The FDA highlighted two primary concerns: the use of Delta-8 THC and the issue of copycat products.
First, this is not the first time the FDA has addressed concerns around Delta-8 THC, which include:
- Delta-8 THC has not been evaluated or approved by the FDA for safe use and may pose public health risks;
- FDA has received adverse event reports involving Delta-8 THC products;
- Delta-8 THC has psychoactive and intoxicating effects; and
- there are concerns about the processes used to create the concentrations of Delta-8 THC claimed in the marketplace.
Practice Tips If you operate in the cannabis space, we recommend not using Delta-8 THC in your products to reduce liability and enforcement risks.
Second, the FDA previously stated (June 2022) that these products mimic popular candy, chips, and cereal brands, making them appealing to children and confusing consumers. This not only poses a risk to children but also infringes on the trademarks of well-established brands, potentially creating confusion about the responsible party if someone is harmed by a cannabis product.
Practice Tip: Stay vigilant and inform legal counsel if it appears that someone is infringing on your brand (e.g., name, logo, pictures, packaging). Additionally, if you manufacture or process cannabis products, ensure they are distinctly represented from your traditional branding.
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We expect to see additional enforcement action from FDA and FTC in the cannabis space; Especially when there are particularly risky products being brought to market. If you have any questions or would like to discuss further please contact Tish Pahl (tpahl@ofwlaw.com), Kyla Kaplan (kkaplan@ofwlaw.com), Denise Calle (dcalle@ofwlaw.com), and Ben Dash (bdash@ofwlaw.com) for assistance.
