More than 20 state attorneys general (AGs) authored an open letter to congressional leaders calling for legislation that would regulate tetrahydrocannabinol (THC) edibles that mimic the packaging and names of popular products. In their June 22 letter, the state AGs voiced their concern, particularly for children, writing that “copycat THC edibles pose a grave risk to the health, safety, and welfare of our children.” Specifically, the state AGs asked Congress to “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.”
The AGs represent a wide diversity of states, including states such as Alaska, South Carolina, Oklahoma, South Dakota, Oregon, California, New York, and Virginia. The AGs noted that while there was disagreement among the letter’s signatories, all agreed that copycat THC products posed a public health threat to their communities, and particularly children, in their respective jurisdictions.
The letter is the latest in a string of activity concerning edible THC products mimicking well-known consumer brands. Last autumn, state AGs from Arkansas, California, Connecticut, Illinois, and New York each issued consumer advisories and warnings regarding copycat THC edible products. In April 2022, the Consumer Brands Association, several consumer packaged goods companies, and like-minded trade associations sent a letter urging Congress to address what they called the “unscrupulous use of famous brand logos, characters, trademarks and trade dress” on THC- infused edible products. The letter urged Congress to include “famous” marks within the ambit of the SHOP SAFE Act, a bill addressing counterfeit goods sold online. In May 2022, the US Food & Drug Administration (FDA) issued a public warning that edible products containing THC “can be easily mistaken for commonly consumed foods such as breakfast cereals, candy, and cookies, and accidentally ingested.” The agency was particularly concerned as some products were specifically designed to mimic popular, well-recognized foods that appeal to children via similar brand names, logos, or pictures.
Both the state AGs and the FDA noted that poison control centers across the country are receiving thousands of reports of accidental THC exposure, particularly among children. Nearly 80 percent of these reports resulted in healthcare evaluation. The state AGs labeled this accidental exposure from copycat products “a growing problem with no resolution in sight.” According to the AGs, “individual states have tried to rein in these cannabis counterfeits,” but the states cannot curb this growing threat to public safety ”posed by copycat THC edible products alone.
In their letter, the state AGs called upon federal lawmakers to think creatively to address the growing public safety threat posed by “counterfeit, unlicensed, unregulated, and untested THC edibles.” The state AGs noted that “more can be done to address this problem” and the private sector can play an important role in protecting consumers from “the dangers presented by counterfeited products,” but unfortunately consumer packaged goods manufacturers “currently lack the legal tools”. to hold counterfeiters accountable.
The US Cannabis Council, representing dozens of state-legal businesses in the regulated market, is equally concerned. That trade association recently established a Responsibility Committee to tackle the problem in partnership with consumer brands. While the problem stems from the illicit marketplace, the regulated cannabis industry is united in its belief that it’s critical to protect consumer safety as well as the trademarks, trade dress, and other intellectual property of established brands. Manufacturers of copycat and illicit THC edibles do not represent the cannabis industry. Legitimate, regulated, tested cannabis businesses strive to act responsibly and comply with applicable laws, such as avoiding packaging and advertising that would entice youth consumption or otherwise confuse consumers.
Consumer packaged goods companies are already acting to enforce their trademarks against copycat THC products, and now more than 20 state AGs — the top law enforcement officials in these jurisdictions — are urging federal lawmakers to expand the ability of these businesses to hold counterfeiters accountable. Of course, identifying the copycats may prove to be a challenge for law enforcement, as these products are generated from the illicit market where manufacturers are unlicensed and often difficult to identify.
As we have written elsewhere, cannabis businesses continue to grow and mature within state-legal marketplaces, and trademark and related intellectual property issues remain a challenge. Copycat THC edible products pose not only a reputational risk to a company’s goodwill but they pose a public health risk of accidental exposure to intoxicating THC. Further, these counterfeit products also complicate the ability of legitimate, regulated businesses to convince the public that they produce safe and responsible products. While consumer packaged goods companies already have many tools to combat the copycat problem (including, for example, federal trademark registrations), state-legal cannabis brands have fewer such tools.