FDA/FTC Delta 8 Warning Letters

Products like Doweedos Delta-8 Edible Chips were cited in yesterday's joint FDA/FTC warning letters.

There were actually six warning letters sent in this enforcement action group, but for some reason, only five were joint FDA/FTC letters, and one was just an FDA letter. The FTC has more "teeth" than FDA, and these joint letters should send warning shots to sellers of THC and delta 8 products that are packaged favorably to children. Unfortunately, since this is not the first of these actions, I am unsure if the delta 8 market has gotten (or cares) about the message. 

One of the most interesting parts of this action is the use of Section 5 of the FTC Act, which prohibits unfair or deceptive acts. This prohibition includes practices that present unwarranted health or safety risks. Delta 8 poses dangers, especially to children, in favorable formats like cookies and bright-colored candy that looks like store-bought food. This is considered deceptive marketing.

• From warning letter. "Preventing practices that present unwarranted health and safety risks, particularly to children, is one of the Commission's highest priorities."

Distributors are responsible: The companies in this enforcement action appear to be distributors of other products, showing that marketplace websites can be on the hook for what they sell. In the past FDA has primarily focused on large distributors like Amazon or websites selling dangerous products like delta 8.

FDA does not like delta 8 for good reason, as shown in this consumer update. Delta 8 can be dangerous, and according to data from National poison control centers, 2,362 delta 8 exposure cases had been reported, including "One pediatric case was coded with a medical outcome of death." This report warns consumers that delta 8 products are widely available in forms favorable to children, such as chocolates and candies. This should have given the delta 8 industry pause, but these products have unfortunately continued to increase.

The warning letters go into great detail about how the products mimic candy and other typical children's junk food. Here are some of the more appalling (and humorous) examples.

• Trips Ahoy Chocolate Chip Cookies:

• Flaming Hot Weedos

• Double Stuff Stoneo cookies

This FTC quote sums it up nicely. "Companies that market and sell edible THC products that are easily mistaken for snacks and candy are not only acting illegally, but they are also putting the health of young children at risk," said Samuel Levine, Director of the FTC's Bureau of Consumer Protection. "Those that prioritize profits in front of children's safety are at serious risk of legal action."

FDA reviewed many of these websites starting earlier this year and, according to the warning letters, re-reviewed the websites over the past few months. I ask, "What can we do to support the agency in removing these products from the market quickly, rather than having to go through the several months-long process they did here?" I think we can all agree taking these products out of the potential hands of kids is a good thing.

In some instances, the online sellers removed only the products mentioned in the warning letters but continued to sell dangerous products. I ask, "Will they continue to sell these products, or will they face additional enforcement action?"

After writing Warning Letter Wednesday for three years, I am still amazed by some of the bold claims and adulterated products sold, but this company won my "most OTT" prize. In addition to the delta 8 products cited in this warning letter, they are also selling pounds of psilocybin mushrooms from their website. The last I checked, these were Schedule 1 drugs, which means the potential for big legal issues. Oy vey! 

Here's the FTC press release on this action.

DATE ORIGINALLY POSTED: 7/17/24

Disclaimer: The educational information provided here is for informational purposes only. Contact an attorney for specific legal advice. Rule #1 in compliance is to ensure marketing is truthful and not misleading.