FTC, FDA Crack Down on Delta-8 Products Resembling Children’s Snacks

This is not the first time the FTC and FDA have addressed the hemp-derivatives market.

In an attempt to prevent marketing practices that endanger children, the Federal Trade Commission and the U.S. Food and Drug Administration targeted companies marketing THC-infused edible products with packaging that too closely resembles children’s snacks and candy.

The FTC and FDA jointly sent cease-and-desist letters to six companies currently selling products containing delta-8 tetrahydrocannabinol, the agencies announced Wednesday. The agencies said the products could be easily mistaken for mainstream foods, including packaging that closely mimics familiar brands such as:

  • Doritos tortilla chips
  • Cheetos cheese-flavored snacks
  • Nerds candy

“Marketing edible THC products that can be easily mistaken by children for regular foods is reckless and illegal,” Samuel Levine, director of the FTC’s Bureau of Consumer Protection, said in a statement. “Companies must ensure that their products are marketed safely and responsibly, especially when it comes to protecting the well-being of children.”

Children are particularly susceptible to the effects of THC, and many have been hospitalized after ingesting edible products containing the substance, added Janet Woodcock, principal deputy commissioner of the FDA.

The cease-and-desist letters were sent to:

  • Delta Munchies LLC (Los Angeles, California)
  • Exclusive Hemp Farms (Gilroy, California) and Etienne-DuBois LLC/Oshipt (Henrico, Virginia)
  • North Carolina Hemp Exchange LLC, dba NC Hemp Shoppe (Raleigh, North Carolina)
  • Dr. Smoke LLC, aka Dr. S LLC (Kansas City, Missouri)
  • Nikte’s Wholesale LLC (Albuquerque, New Mexico)
  • The Haunted Vapor Room (Franklin, New Jersey)

Upon reviewing the online marketing of these six companies, the FTC determined that their advertising may violate Section 5 of the FTC Act, which prohibits unfair or deceptive practices that present unwarranted health or safety risks.

For instance, Dr. Smoke sold THC-infused “Doritos” and “Cheetos” with packaging nearly identical to the original products, using the same colors, logos, and mascots. Similarly, The Haunted Vapor Room sells delta-8 THC products that closely resemble Nerds Rope candy, and Delta Munchies markets delta-8 THC gummies in brightly colored packaging similar to conventional gummy candies.

The FTC’s letters demanded that the companies halt marketing edible delta-8 THC products using advertising or packaging likely to appeal to young children.

They also strongly encouraged the companies to review all marketing and product packaging for similar products, and to take swift action to protect consumers, especially children.

The FTC has requested that each company contact agency staff within 15 days to detail the steps they have taken to address these concerns.

Existing concerns

This is not the first time the FTC and FDA have addressed health-related advertising claims in the unfettered hemp-derivatives market. In 2019, the agencies issued similar letters to sellers of cannabidiol (CBD), warning them against advertising products as being able to prevent, treat or cure diseases without solid scientific evidence.

In a recent May memo from the FDA, Woodcock wrote that the agency is “very concerned about the growing popularity of delta-8 THC products being sold online and in stores nationwide,” as well as its transit across state lines.

She added, “It is extremely troubling that some of the food products are packaged and labeled in ways that may appeal to children. We will continue to safeguard Americans’ health and safety by monitoring the marketplace and taking action when companies illegally sell products that pose a risk to public health.”

Additionally, a 2021 independent study commissioned by hemp research firm CBD Oracle analyzed 51 delta-8 THC products and found that 76% of them contained illegal levels of delta-9 THC — and in at least one case, a staggering 7700% over the legal delta-9 limit.

The average amount of delta-9 THC in all products tested by CBD Oracle was 6.6%, 22 times higher than the federally legal limit.

Adam Jackson

Adam Jackson writes about the cannabis industry for the Green Market Report. He previously covered the Missouri Statehouse for the Columbia Missourian and has written for the Missouri Independent. He most recently covered retail, restaurants and other consumer companies for Bloomberg Business News. You can find him on Twitter at @adam_sjackson and email him at adam.jackson@crain.com.

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