Walking into a dispensary can make you feel like a kid in a candy store. But when you’re a company like candy titan Mars Inc., that can be a problem.
The harsh in their sugar buzz comes from what’s become a seemingly endless battle to stop cannabis companies from using their trademarks, aesthetics, and branding to push knock-off, THC-packed items like Stoner Patch Dummies or the lazily-named Buttafingazzz.
While the visual of an edible packaged to resemble familiar candy brands likely sounds like a parent’s worst nightmare, it’s important to remember the context that led us to this current, lawsuit-happy moment. Prior to adult-use legalization, the grey area created by a legal medical market provided the leeway for a lot of edibles makers to basically do whatever they wanted.
As a result, a chance to “taste the rainbow” (sorry Skittles) was often readily available, whether it came in the form of an ultra-potent brownie or cooked into some kind of delectable candy. Furthermore, without access to traditional forms of intellectual property protection or any viable avenue for marketing, aligning one’s product with something customers could quickly recognize provided an easy, if legally dubious, path to brand recognition.
With the advent of adult-use cannabis in state markets like California, the ability of such operations to slip through the legal cracks became exponentially harder. That’s led to a flurry of recent legal action by the likes of Mars Inc. and Hershey Company, with the results almost always a settlement that finds the offending cannabis candy makers agreeing to cease production of the item(s) in question.
In many cases, the lawsuits mark the end of the line for illegal operators now no longer able to stay in the shadows. Sometimes, however, the targets of these actions are from the newest generation of the traditional market, which knowingly competes against its legal counterpart – and often succeeds.
In a recent New York Times article exploring the issue, reporter Valeriya Safronova spoke with Henry Wykowski, a lawyer who has focused on cannabis law for 17 years. Now a professor at the University of California Hastings College of the Law, Wykowski actually teaches a course on cannabis law, including a session focused on laws concerning product likenesses.
“Five or ten years ago, when cannabis was starting to take off,” Wykowski observed, “it was a joke to have something like ‘Cap’n Punch’ [or] a cereal that’s infused. But the industry has matured, and the people who know what they’re doing no longer engage in that kind of conduct.”
The escalation of legal activity also includes a May lawsuit filed last month by Wrigley against the Ukiah, California company Terphogz over their Zkittlez strain and branding. An award-winning flower, Zkittlez was sued for “trademark infringement, false designation of origin, unfair competition, trademark dilution, cybersquatting, and related claims,” according to David Downs at Leafly.
It could be argued that the team at Terphogz are really being punished for the bad deeds of others, given Zkittlez doesn’t even make candy. Later in his story, Downs gives a succinct summary of what’s currently transpiring overall on this front.
“The trademark lawsuit exemplifies a type of growing pain for the newly legal, $18.3 billion cannabis industry,” he writes. “Counterculture creators have long engaged in trademark infringement. But in now-legal weed, it’s a growing commercial liability. Operators have shed numerous problematic marks over the decades: Skywalker OG, Gorilla Glue #4, and Bruce Banner for example.”
In referring to the plight of Gorilla Glue #4 (now known as Original Glue or GG4), the complexity of the situation is laid bare. Whereas the complaint with GG4 was wholly focused on copyright and intellectual property rights, there is a separate, quite valid, issue being raised by Mars Inc. and the like: accidental ingestion by children.
While there’s little reason to think that a cannabis strain named for a heavy-duty epoxy was ever going to unduly influence children to consume cannabis, replace glue with something intentionally designed to resemble a package of Chips Ahoy or Sour Patch Kids, and the equation changes completely.
The numbers provided by the New York Times paint a pretty clear picture. Citing a report from New York cannabis data-analytics company Surfside, Safronova notes that edibles have outpaced the growth of the rest of the cannabis market by an estimated 29 percent in the last three months when compared with the same period in 2020.
Along with more people buying edibles, we also have more reports of underage consumers ingesting them.
“Between 2014 and 2018,” notes Safronova, “annual calls to the Washington Poison Center about children under 5 being unintentionally exposed to cannabis nearly tripled, rising from 34 to 94. In 2017, Washington State began requiring that all edibles have a logo stating ‘Not for Kids’ (not that this will mean much to a 2-year-old).”
Taken together, it’s clear that while not all offenders are created equal, the need – and justification – for any products in the Stoner Patch Kids tradition no longer exists. While this issue does unfairly impact those who desire potency beyond legal limits, the time for edibles resembling a movie theater snack counter is over.
Instead, seek out the safe, tested alternatives: items sold at licensed dispensaries which promise more consistent results, better flavors, and something no little one will mistake for a grocery store treat.