The risks of cannabis-infused candy
Marijuana edibles are creating a new level of risk for customers and manufacturers.
“Oh, my goodness! You have Skittlez,” I gushed. “Do you mind if I take a photo of it?”
The convenience store clerk was bewildered and bemused, especially when I threw caution to the wind and said, rather than photographing it, I would purchase it.
He helpfully asked, “Do you want this one for $15 or two for $25?” I opted to buy both the Skittlez and, based on his recommendation, the NeЯds Rope.
Why is an adult so excited about these products? And what do they have to do with insurance? Looking at the photograph, they appear to be the same type of candy sold in any convenience store throughout the United States.
However, the products pictured above are not from the respective candy manufacturers, which is one of the reasons they were behind the counter. These are Delta 8-THC parodies of the real candy product. Similar products are involved in trademark infringement or intellectual property (IP) claims and lawsuits as a result of the packaging labels. The products have potential product liability issues as well.
Hemp vs. marijuana legalities
Delta 9-THC, aka “cannabis,” aka “marijuana,” is federally illegal as it is still listed as a Schedule I drug on the Controlled Substance Act (CSA). Delta 8-THC is a cannabinoid commonly referred to as “legal weed.” The 2018 Farm Bill removed hemp as a Schedule I drug from the CSA as long as the THC level is no more than .3% of Delta-9 THC in dry weight. Delta 8-THC, therefore, is federally legal because it is derived from hemp rather than the marijuana plant. However, in a weird twist of fate, Delta 8-THC is illegal in some states — even in the states where medical and adult-use are allowed such as Arkansas and Colorado, respectively.
Delta 8-THC has a psychoactive effect similar to Delta 9-THC, which makes it controversial.
One of the most notable concerns for these two products is the packaging itself. As mentioned previously, there are lawsuits for IP, trademark infringement and the like because the candy brands are concerned the Delta 8-THC product looks too much like their brand and will dilute their brand presence and confuse children.
Candy-like imitations
The NeЯds Rope uses the same cartoon characters as the candy brand, and unlike Skittlez, even has the word “candy” in small words under its logo. Both Skittlez and NeЯds Rope say they are “medicated,” have the California THC warning label, and warn that the product is not safe for children, but to be fair, over-the-counter (OTC) pain relievers such as aspirin or NSAIDs are also labeled to be kept away from children.
Unlike OTC pain relievers and state-legal Delta 9-THC products, neither the Skittlez nor the NeЯds Rope is childproof. There are also no serving sizes listed on either one of these products. Both state they contain 500 MG of Delta 8-THC, but the package does not state if an inch of the rope or one or two Skittlez is a serving size. If adults are initially fooled by a cursory glance at the label, then children who have less experience would not understand the difference and could end up eating the entire package. The cannabis industry intends edibles to be taken in small doses.
There are many articles about frantic parents rushing children to the emergency room for what appears to be a THC overdose; no parent wants to experience that horror — either for their child or themselves if they took too much of the medicated “candy.” This lack of consumer protection and information is a very real liability concern.
Another packaging concern is the lack of information on the product itself. Unlike the photo to the left, neither Skittlez nor NeЯds Rope discusses the ingredients, who manufactures the product, or how a person could obtain more information.
A local chain in Kansas, which prides itself on quality control and raising the reputation of any THC-infused or -related product, required I prove my age, undergo a brief counseling session which included a discussion concerning the fact this was an edible and the efficacy on-set time was approximately 30-90 minutes when making a purchase. They explained how the product contained THC, and, therefore, could have psychoactive effects. I also had to sign a waiver to state I had undergone this counseling and understood the risks. This store is very aware of the risks the product poses and attempts to manage its risk exposure.
The convenience store, on the other hand, sold the product to me without so much as a warning although, again, they probably couldn’t understand that the reason a middle-aged woman was getting so excited about these products was because she had read a plethora of insurance and legal articles and was thrilled to see them in real life.
The convenience store can be named in a lawsuit if a child happens to ingest the product or if an adult takes too much and has a “bad trip.” They’ve opened themselves up to a product liability case and have very little defense in the event of a claim.
While these products are involved in various lawsuits for other liability concerns, there remains a host of product liability issues that are unresolved such as the fact that these, and similar products, are attractive to children, are made to mimic candy, are not child-proof, display a marked lack of information, and the sellers of the products may not do enough to protect themselves from a product liability claim if proper consumer education is not present.
Editor’s Note: For more information on cannabis risks and managing cannabis-related claims, visit www.nutraining.com for information on ALM’s Cannabis Insurance Coverage Specialist (CICS) designation.
Chantal M. Roberts, CPCU, AIC, RPA is a claim handling practices, standards, and procedures expert witness, sought-after speaker, and author. She has over 20 years of experience as an adjuster handling a wide variety of insurance claims such as homeowners and heavy equipment to marijuana and inland marine. Contact her at cmroberts@cmrconsulting.net.
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