FTC and FDA Send Second Set of Warning Letters to Delta-8 Companies

Last month, the U.S. Food and Drug Administration and the Federal Trade Commission issued a second set of cease-and-desist letters to five companies currently marketing edibles containing Delta-8 tetrahydrocannabinol (THC), in packaging the FDA and FTC say is deceptively similar to popular children’s foods and cereals.

The joint cease-and-desist letters allege that the companies’ marketing practices violate the FTC Act’s prohibition against unfair or deceptive acts in the marketplace, including practices that present unwarranted health or safety risks, by using graphical elements and imagery to advertise adult products to children. In particular, the FTC and FDA alleged the companies used inadequate and confusing labeling to create adult delta-8 THC edibles bearing a strong resemblance to popular children snacks and candies. For example, one company named their product “Trips Ahoy!” in an apparent spoof of the popular “Chips Ahoy!” cookies, while another used the name “Double Stuff Stoneo,” suggestive of Nabisco’s “Double Stuff Oreo” cookies.

This isn’t the first time the FTC and FDA have taken action against this type of deceptive marketing. In July 2023, a first round of cease-and-desist letters were sent to six companies marketing edible products containing Delta-8 THC in packaging that similarly mimicked popular children’s snacks and candies.

The agencies have argued that their primary concern is that these products can be easily mistaken for traditional foods, leading to accidental ingestion or overconsumption, especially among young people who may be less likely to focus on or understand packaging text. The letters also stress that preventing practices that present risks to young children is one of the FTC’s highest priorities.

The FTC has asked each company to contact agency staff within 15 days to detail the specific actions it has taken to address the FTC’s concerns. Additionally, the companies must immediately stop marketing Delta-8 THC edibles that mimic conventional foods in a way that appeals to young children.

The FTC and FDA’s continued joint efforts to police hemp and CBD products demonstrate the continuing importance of complying with marketing and advertising requirements in the cannabis space.  Manufacturers and suppliers of cannabis, CBD, and hemp products should be sure to consult with counsel in advance of any marketing efforts and to ensure compliance with applicable FTC and FDA regulations.

*Tori Geller contributed to this post