At first glance, the Skittles package seems just like the one sold in the candy aisle of a supermarket: it contains block letters filled with white, a flowing rainbow, and a red candy that marks the dot above the letter “i “Replaced.
A closer look reveals a few small differences: a background pattern of small, stylized marijuana leaves; a warning sign; and numbers that reveal the amount of THC, the intoxicating substance in cannabis, in each piece of candy.
The images are in a lawsuit filed by World Cup ™. Wrigley Jr. Company, owned by candy giant Mars Inc., filed lawsuits against five companies in May for selling cannabis-infused foods like our old friends Skittles, Starburst and Life Savers look like. Although the lawsuit focuses on intellectual property rights, plaintiffs also argue that the copycat products could lead people, especially children, to mistakenly use drugs.
A spokeswoman for Mars Inc. wrote in an email that the company was "deeply disturbed" by the products.
America is at an interesting crossroads: Big Candy, vilified as the primary source of refined sugar in the wellness era, has become an unlikely sheriff in the Wild West of recreational marijuana roaming by adults in pandemic stress.
In recent years, the Hershey Company (versus TinctureBelle for products similar to Reese & # 39; s Peanut Butter Cups, Heath Bars, Almond Joy Bars, and York Peppermint Patties), Mondelez International (versus a company selling Stoney), have made similar ones Lawsuits were filed by Patch Kids) and Ferrara Candy Company (against a business that sells Medicated Nerds Rope). These lawsuits were all settled, and the smaller companies agreed to stop producing and selling the offending products.
Many public health officials fear that accidental ingestion cases in children without proper regulation will continue to increase as food availability increases. Some poison centers have already seen this trend in their data.
For example, there were 122 cases of THC exposure in children under 5 in Washington State in the first nine months of 2020, compared with 85 in the same period in 2019. The most common side effects reported were vomiting, lethargy, and chest pain.
While many edible companies operating in states where medicinal or recreational cannabis is legal strive to comply with their local regulations, the illegal market is still thriving.
"When companies like this make the headlines to do what we at Wana purposely avoided, I get angry and frustrated," said Joe Hodas, chief marketing officer at Wana Brands, a Colorado company that sells cannabis-infused products .
A recent review of the websites of defendants in Wrigley suits found cannabis-infused offers like Stoner Patch Dummies, the Worlds Dankest Gushers, Gasheads Xtremes Sourfuls, Trips Ahoy, Buttafingazzz, and Caribo Happy Cola.
"The situation has gotten more and more egregious," said Christopher Gindlesperger, a spokesman for the National Confectioners Association, a DC trade organization of 350 members including Mars Inc., Hershey's, Ferrara and Mondelez. “Cannabis companies cannot and should not tarnish existing brands at will. This creates confusion among consumers. "
Discrete little treats
A majority of states now allow the use of medical marijuana (Alabama just joined the list), and 18 of them, including New York, have also legalized recreational marijuana. Although New York sales are not expected to start until 2022 at the earliest, companies are rushing to buy real estate and prepare for the market to open. Some already sell hemp-derived Delta-8-THC in candy form.
The spread of legalization has brought more actors and consumers to the food market. “Eating is easy. They are portable. You don't have to find a place to step aside and smoke, ”said Sean Arnold, founder of Terradigm Consulting, which advises cannabis companies on licensing, infrastructure and product development.
Edibles have come a long way from the days of pot brownies, when half a pastry could result in hours of degraded function or nothing at all. "Ten years ago, when you bought a brownie, luck was in the draw," said Henry Wykowski, a lawyer who has focused on cannabis law for 17 years. "You didn't know where you would end up."
Nowadays, licensed manufacturers are required by states to test their products for effectiveness and to label packaging with the amount of THC in each dose and throughout the packaging. Some food manufacturers make products with low levels of THC so the inexperienced can experiment with dosages.
The accessibility of food and the discretion it affords has made it the fastest growing category in cannabis, according to Surfside, a cannabis data analytics company based in New York. Surfside estimates that groceries outperformed the rest of the cannabis market in the past three months by 29 percent over the same period in 2020.
Mr Wykowski said violations, which in the past may have escaped big companies like Mars or Hershey, are on the radar today "because cannabis is big business now".
He teaches a course on cannabis law at the University of California's Hastings College of the Law. One of the sessions deals with laws related to similarities with other products. "Five or ten years ago, when cannabis started taking off, it was a joke to have something like Cap & # 39; n Punch, a granola that was poured into it," said Wykowski. "But the industry has matured and the people who know what they're doing no longer act like that."
Even so, he regularly works with food companies that receive cease and desist from confectionery companies. Most of these cases do not reach the courts. "Ninety percent of the time people will look at the letter and stop," said Wykowski.
Most legal cannabis companies make every effort to follow the regulations closely.
Lightshade, which operates nine pharmacies in the Denver area, has an eight-person compliance and audit team led by Charisse Harris. Ms. Harris said there are four checkpoints at which a product is assessed and that her reviewers conduct random checks in stores every week.
Some red flags contain products that contain a repetition of the word “candy” (such as “Kandy” or “candy”) and those that are not in packaging that meets government requirements for child safety correspond, said Ms. Harris. "I don't say much," she added.
Regulatory compliance becomes more complicated for companies operating in different states because there are no state regulations governing cannabis.
"In Florida, our packaging is black and white and there are no pictures," Hodas said of Wana, which operates in 11 states and Canada. The rubbers have a simple, cream-colored color. In Colorado, however, the wana container features a picture of pink watermelon slices, and the gums are a rich coral hue.
There are three main aspects of a candy that can be protected by trademark and copyright laws, said Nancy J. Mertzel, an intellectual property law attorney who specializes in intellectual property law.
Take Hershey's kisses. "They have the name Kisses which is a brand, the shape of the candy itself which is both a brand and a trade dress, and the packaging which is copyrighted," said Ms. Mertzel.
Ms. Mertzel said other possible intellectual property protections are patents – for example, Mars has applied for patents on its chocolate, which is more melt-resistant than other formulations – and trade secret laws. The best-known example of a trade secret is the Coca-Cola formula. another is Hellmann's mayonnaise.
The case that Wrigley brought against the cannabis copycats is straightforward, Ms. Mertzel said. "I undoubtedly understand Wrigley's concerns about letting others use his intellectual property, and those concerns are exacerbated when it comes to a product that children really shouldn't be getting," said Ms. Mertzel.
She compared public health concerns to those much discussed when the tobacco industry used cartoons to appeal to children in the 1960s. Even the Flintstones were there, and Fred and Barney were promoting Winston cigarettes in a notorious commercial.
Child safe cannabis
Andrew Brisbo, the executive director of the Marijuana Regulatory Agency in Michigan, said preventing teenagers from accessing cannabis is one of the primary functions of the program he oversees. And food is paramount.
"When we look at accidental consumption, food is a major problem," Brisbo said. "A young person doesn't accidentally smoke a marijuana cigarette."
Gillian Schauer, a public health and policy adviser who has worked with a number of states on cannabis policy issues, said there are two potential problems with food from a public health policy perspective: overuse and accidental use.
Since edibles can take a while to become consumed, sometimes people rush to eat more without waiting for the first effects. Some inexperienced users do not know how much THC to consume and are not informed about the possible effects of cannabis. A low dose is considered 1 to 2 milligrams of THC, but the effects will depend on many factors, such as body weight and the amount of food the consumer ate that day.
Accidental ingestion can affect anyone, but Dr. Schauer said: "It has mainly affected children because they can confuse edible cannabis products with other edible products because most of the food looks like candy, cookies or cakes." She pointed to reports made in 2012 by poison control centers in Colorado and Washington, the two earliest states to legalize recreational cannabis use.
Between 2014 and 2018, annual calls to the Washington Poison Center for unintentional exposure to cannabis for children under 5 tripled from 34 to 94. In 2017, Washington State required that all food items have a "Not for Kids" logo. (Not for kids) (not that this means a lot to a 2 year old).
In Colorado, food is the leading way children under the age of 5 accidentally consume cannabis. In 2019, 108 people under the age of 19 were accidentally exposed to cannabis in Colorado. In 2011, the year before the state legalized recreational use, the number was 16.
As in Washington, Colorado now requires food packaging with a warning symbol. The state also prohibits the use of the word "candy" on marijuana packaging and the sale of foods that look like humans, animals, or fruit.
Dr. Schauer said other ways to reduce the risk of accidental ingestion are by mandating child-resistant packaging, requiring each edible product to be individually packaged in a package, limiting the effectiveness of each individual edible item, and over which consumers who live with children may experience Keeping their products clear up cannabis products.
It is important to make packages that a child will not notice, she said. For example, in Canada, where cannabis is legal, federal law requires packaging to be a uniform color and smooth texture, with no cut-out windows, scents, sounds, or inserts (among others).
Despite strict Canadian laws, it wasn't until mid-May that a child was hospitalized in New Brunswick Province after eating Stoneo cookies that were supposed to look like Oreos, according to the Canadian Broadcasting Corporation.
In America the state laws are far less strict; For the most part, they prohibit the inclusion of cartoon characters and make general statements about how the packaging shouldn't appeal to a child.
"The risks can be much more limited than we've seen before," said Dr. Shower.
Mr. Hodas has three children, ages 12, 17 and 19. He has been in the cannabis industry for more than seven years. When he has products at home, he keeps them in StashLogix bags. It may not slow down a motivated 15-year-old, but it will stop a toddler, he said.
"If you've got it capped and kept in a place where they can't reach or see it, this is the best way to prevent ingestion," Hodas said.
For parents of a certain age, the situation could be reminiscent of the public service announcement from 1983, "We’re Not Candy", in which a barbershop quartet made of singing tablets on television advises children to "have a healthy fear of us".
That the products now being tested are some form of candy that has only been improved – and that no one is seeing the same screen anymore – makes it difficult to imagine a marijuana meme as memorable.