Cannabis Trademark Litigation Leaves Candy Companies With a Bitter Taste

Allegations of candy company trademark violations by cannabis companies are leaving sweets makers bitter. Manufacturers of confections are imploring producers of cannabis edibles to avoid creating labels that may closely mirror popular snack and treat products.

One of the major concerns, companies say, is that kids might mistake certain cannabis edibles for well-known and loved snacks like Oreos, Sour Patch Kids or Doritos. Numerous law enforcement agencies and even some state attorneys general had issued warnings prior to Halloween warning of similarities of cannabis products that could closely mirror treats.

Concerns about mistakes might be fair where cannabis companies post deceptive packaging on products that contain high levels of THC, the psychoactive ingredient in marijuana. According to the American Association of Poison Control Centers, there were 2,050 kids under the age of 12 who allegedly ingested cannabis edibles at home, compared to about 130 in 2016.

There were no reported issues with trick-or-treat (it’s highly unlikely anyone is going to intentionally pass out edible marijuana products to kids, as it’s not only dangerous, but such products can be quite expensive), but there is a legitimate concern for accidental ingestion of products that look like snacks. Symptoms of overdose can range from mild to severe, in the most extreme cases resulting in seizures or even a coma. Although there have been no reported deaths, the risks for kids are always heightened compared to adults.

This past year, Mars Inc. filed lawsuits against numerous cannabis companies in California and Illinois alleging brand imitation, trademark infringement and copyright infringement. Cannabis edibles makers were reportedly infringing on trademarks for Starburst, Life Savers and Skittles.

In California, these issues are far less common than in other states because of our rigorous cannabis labeling laws.

Statutes were written specifically and strictly to ensure the packaging of pot products does not obviously appeal to minors. There are also provisions in section 15040 in state statute restricting advertising placement. Companies are even barred from using variations of the word “candy,” such as different spellings, etc. Legal cannabis in California tends to be pretty conservatively packaged. Retailers and other distributors should also have an attorney on retainer to review product offerings to ensure they aren’t unwittingly violating state law with packaging that crosses the line. The investment in legal review is worth it considering what’s at stake if you make an error and violate state law.

As longtime Los Angeles marijuana business attorneys, our team can help ensure your company is not in violation of any existing trademark before new products hit the market. We can also take steps to ensure that your own branding is protected from poaching by other firms.

Tips to Keep Kids Safe From Edible Cannabis

Cannabis consumers have substantial power in keeping kids safe from edibles. All cannabis products should be kept in a box or container that is locked and away from regular food or drinks. Storing them up high and away from kids’ reach is also a good idea. Always purchase your pot products from an authorized, licensed seller. Be mindful too that there can be up to a two-hour delay from the time of consumption to the time of symptoms. Parents or caregivers who suspect a child has ingested cannabis should take them to the nearest emergency room as soon as possible, regardless of whether symptoms are present.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 714-937-2050.

Additional Resources:

Ferrara Candy Says Pot Cos. Infringed Nerds, SweeTarts TMs, Oct. 28, 2021, By Sarah Jarvis, Law360

More Blog Entries:

California Cannabis Company Wins Industry’s First Anti-Trust Case, Oct. 21, 2021, Los Angeles Cannabis Trademark Attorney Blog