THC in candy bags highlight the risks of removing CannaBusiness from trademark protection
Florida officials are on “high alert” as THC foods “get into the hands of children and adolescents.” Of particular concern is the fact that the goods in question ‘have a remarkable resemblance to ordinary sweets’.
An image shared by the Charlotte Country Sheriff’s office shows bags with the hallmarks of well-known confectionery brands such as Skittles and Nerds. At first glance, these items look like real products. However, on closer inspection, irregularities appear. For example, a “Cheetos” bag has a small label with THC content and a triangle with a cannabis leaf on it.
Without looking closely, you would never find out that these candies, which bear a remarkable resemblance to …
Posted by Charlotte County Sheriff’s Office on Tuesday Mar 16, 2021
Given these tell-tale signs, it is reasonable to assume that the target market for these products is not the regular consumer of the candy or snack in question. The main purpose of the violations appears to be to hide the true nature of the products from parents, teachers, and other figures of authority. Of course, there is still a risk of someone accidentally ingesting these THC foods. For example, a person might recognize the Skittles brand but not know what real Skittles look like. Additionally, some consumers might conclude that brands like Cheetos and Nerds are entering the cannabis market. In fact, Frito-Lay (the makers of Cheetos) felt the need to clarify that the company “does not manufacture edible cannabis snack products and that packaging containing THC claims is not associated with our company or our brands.”
Photo by SageElyse / Getty Images
Using trademarks from iconic brands can cause alarms for many consumers. However, cannabis companies are arguably at greater risk. Imagine a scenario where THC foods of unknown origin were introduced in bags similar to those of a legitimate company selling hemp CBD foods. In this case, the risk of confusion would be much greater than with well-known brand infringements, but the hemp CBD company has less protection against counterfeiting than a snack maker like Frito-Lay. As stated in its cannabis guidelines, “The US Patent and Trademark Office (USPTO) refuses to register trademarks for goods and / or services that are clearly in violation of federal law, regardless of the legality of the activity under state law Right. “This includes hemp CBD foods because, as the USPTO explains,
The use of a drug or substance in food or dietary supplement that is subject to clinical investigations without the approval of the US Food and Drug Administration (FDA) violates the FDCA [Federal Food, Drug, and Cosmetic Act]. 21 USC §331 (ll); see also 21 USC §321 (ff) (which indicates that a dietary supplement is considered a food within the meaning of the FDCA). With the Farm Bill of 2018, the FDA’s authority to regulate products containing cannabis or compounds derived from cannabis was expressly preserved under the FDCA. CBD is an active ingredient in FDA-approved drugs and a substance that is undergoing clinical research.
It can be argued that the current stance of the USPTO does not serve the public interest well. Ultimately, a product that is regulated by a state government is much less likely to pose safety problems than a product that is not regulated at all. At the very least, cannabis companies that operate legally at the state level should be given some legal tools to defend themselves against counterfeiters of cannabis products, if only because they also help protect consumers.
Fred Rocafort is a former diplomat who joined Harris Bricken after more than a decade of international legal experience, primarily in China, Vietnam and Thailand. This article originally appeared on the Canna Law Blog and was republished with permission.