As adult-use cannabis becomes legal in an increasing number of US states and the industry grows at a breakneck speed, lawsuits regarding cannabis products have increased in kind. One example of this is the lawsuit the Wm. Wrigley Jr. Company filed against five THC-infused edible companies in May. The charge brought against these companies by the Mars Inc. subsidiary is copyright infringement. In addition to their claims that the defendants’ products infringe on intellectual property laws, the plaintiffs argue that allowing the defendants to distribute their wares directly endangers children due to packaging similarities between the cannabis edibles and well-known, child-appropriate treats. Since the increased legality and popularity of recreational cannabis, edibles have become perhaps one of the most rapidly growing categories in the industry due to their increased portability over flower or concentrates and their discreetness. This is an indisputably positive turn of events for legitimate companies that legally distribute THC-infused treats. However, it has also led to the rapid growth of companies that distribute unregulated edibles in packaging that mimics big brand names and contributes to consumer confusion and an increased risk of accidental consumption among children.
The cannabis-infused edible industry is no stranger to intellectual property rights lawsuits. Examples of such lawsuits include one filed against TinctureBelle by Hershey’s for edibles resembling their chocolate products and one brought by the Ferrara Candy Company against a store selling “Medicated Nerds Rope”. The current lawsuit is focused on the California-based company Terphogz, which has used the brand name “Zkittlez” to sell hemp flower, clothing, and other cannabis-related products along with imagery strongly reminiscent of the packaging used for Wrigley’s “Skittles” candy. The lawsuit also lists five unnamed online retailers as co-defendants who are believed to have purchased Terphogz’s products and resold them to consumers in Illinois. In addition to the infused Skittles knockoffs, the corporation lists products such as “Life Savers Medicated Gummies” and “Medicated Starburst Gummies” in the lawsuit.
While many legitimate legal cannabis distributors strive to adhere to local standards regarding the branding and appearance of infused products, the illegal market is still thriving and demonstrates far fewer qualms about the legality of their packaging practices. However, what companies such as Terphogz neglect to consider is how the industry, and with it acceptable business practices, has matured as it has grown. Henry Wykowski, a lawyer who has specialized in cannabis law for 17 years, said of the case, “five or 10 years ago when cannabis was starting to take off, it was a joke to have something like Cap’n Punch, a cereal that’s infused. But the industry has matured, and the people that know what they’re doing no longer engage in that kind of conduct.” In addition to demonstrating a lack of understanding regarding industry standards and business mores, companies such as the plaintiff profiting illegally from branding associated with popular corporations might be taken as an insult to the efforts of licensed edible manufacturers who carefully consider packaging. For example, Joe Hodas of Wana Brands has said “When companies like these create headlines doing what we’ve purposely avoided at Wana, I feel anger and frustration. It might initially seem innocuous for illicit edible companies to brand their products similarly to popular candy brands. However, this tactic negatively affects the legal cannabis industry by taking business away from legitimate companies that strive to provide carefully quality tested, safe, and legal edibles. Additionally, packaging that imitates well-known candy brands produces confusion among consumers, which creates a two-pronged effect of being deceitful and possibly dangerous.
In addition to more general copyright concerns, such as consumers mistakenly believing that they are purchasing infused products from a well-known food brand, there are also safety concerns at play in this issue. For example, according to a complaint filed on May 3rd, the edibles “pose a great danger to the public as anyone, children and adults alike, could mistake the infringing cannabis-infused products for Wrigley’s famous and beloved candies and inadvertently ingest.” This is especially true for products that do not only imitate packaging but use brand names and only distinguish the psychoactive nature of the product by adding the word “medicated” to online listings. The issue of accidental consumption by children is mitigated to some extent within legitimate edible companies by making their packaging look less like the tempting technicolor packaging associated with candy. Additionally, the vast majority of states that have legalized cannabis require child-resistant packaging; a quality that Terphogz’ products do not feature. As a result of the similarities between Wrigley products and the edibles distributed by the defendants, the case is a relatively straightforward one. Nancy Mertzel, a lawyer specializing in intellectual property law has said of the case, “I certainly understand Wrigley’s concerns about having their intellectual property used by a third party, and those concerns are exacerbated when it’s for a product that children really shouldn’t be getting.” Unlike many cases of lawsuits being filed against alleged copyright infringement, the case in question not only affects the plaintiffs but refers to a potential threat to children. Edibles designed to be identical to favorite childhood treats such as Skittles and Starburst may be consumed by individuals who are unable to read warning labels. The danger of this possibility is only augmented by the fact that some of the products in question, such as the “medicated Skittles” contain up to 400mg of THC per container.
As the legal weed industry grows, and sales of edibles with it, a variety of concerns come to light. One of these concerns is that of companies selling unregulated edibles in packages that resemble popular candies. This might seem like a non-issue to many, and perhaps even an issue of large corporations attacking small companies to some. However, the problem with Terphogz’ products does not end with copyright infringement. As regards cannabis edibles packaged to look like normal confections, particularly in the absence of child-resistant packaging, such practices might be viewed as subpar compared to industry standards and unsafe for consumers and their children.
New York Times article about the lawsuit: https://www.nytimes.com/2021/05/22/style/edibles-marijuana.html
Chicago Sun article including pictures of offending products: https://chicago.suntimes.com/cannabis/2021/5/4/22420070/mars-candy-medicated-skittles-cannabis-pot-candy-gummies-zkittlez-taste-rainbow-girl-scout-cookies
Information regarding the lawsuit on legal and ethical levels: https://www.baltimoresun.com/news/nation-world/ct-biz-nyt-wrigley-skittles-marijuana-thc-candy-20210525-tbvjwafgpjhjhcfb4rgl3l3vnq-story.html
Information about edible packaging guidelines by state: https://www.greenbits.com/blog/cannabis-packaging-compliance/