Annapolis, Maryland-based cannabis company Crabcakes & Cannabis®, pulled a popular parody sticker after receiving a cease-and-desist letter from McCormick & Company, Incorporated, the makers of Old Bay® seasoning, who said their sticker was too similar to their Old Bay logo. 

Crabcakes & Cannabis took the opportunity to challenge the implications of a Supreme Court decision last June that is impacting all types of small businesses. The issue brings up the question that if parodies aren’t allowed, are we taking trademark laws too far?

The novelty sticker parodies the Old Bay spice jar, but it ended up prompting a lawsuit as McCormick alleges a trademark infringement and tarnishing of their image by associating it with cannabis.

“While we firmly believe in the protection of parody and First Amendment rights, the prohibitive cost of litigation led us to make the difficult decision to discontinue our parody sticker,” Founder of Crabcakes & Cannabis Jennifer Culpepper said in a statement We stand by the fact that no reasonable consumer would confuse our novelty item with a food seasoning product.”

The cease and desist letter sent from McCormick & Company claims that the parody sticker, featuring the words “420 BUD” and designed in a way that’s reminiscent of the Old Bay jar, infringed upon their trademark and trade dress, potentially harming their brand’s reputation. 

Per the letter, McCormick stated that the company “takes this matter very seriously, as it is not in the business of sponsoring products relating to marijuana use.”

Culpepper continued, “We deeply respect businesses’ (and artists’) rights to safeguard their brands, but it is paramount that we strike a balance between these rights and the freedom of expression and creativity that parody affords. When a large business bullies a small business through costly litigation, it makes standing up for your rights nearly impossible. Regardless, we still love Old Bay. Our parody sticker was intended to pay homage to the Maryland brand, not to tarnish anyone’s reputation.”

Culpepper also owns Brand Joint, a national branding agency, and she has been on the other side of a copyright infringement case in the past. She stated, “We have always been very careful not to copy, but rather to create fun and unique parody designs that celebrate Maryland icons.”

The company hopes something good can come out of the incident for the better.

Culpepper concluded, “We hope that this experience will spark a broader conversation about the importance of protecting parody and freedom of expression in our society.

Jack Daniel’s SCOTUS Decision

Last June, a dog toy company Bad Spaniels triggered a lawsuit saying that the company copied elements of Jack Daniels that violated trademark laws.

Jack Daniel’s Properties v. VIP Products rejected the use of images that resemble Jack Daniel’s trademarks by a manufacturer selling a line of dog toys that mock various beverage manufacturers. Justice Elena Kagan said there were four main elements used by Bad Spaniels that violated trademark laws:

• The toy “is about the same size and shape as an ordinary bottle of Jack Daniel’s”;
• The “faux bottle” follows the original in using a “black label with stylized white text and a white filigreed border”;
• The toy has the product name (Bad Spaniels) “in a like font and arch” to those of the Jack Daniel’s bottle; and
• “Old No. 2 On Your Tennessee Carpet” replaces “Old No. 7 Tennessee Sour Mash Whiskey.”

All members of the court agreed with Justice Kagan’s opinion to deem that toy a condemnable infringement of the Jack Daniel’s marks.

Cannabis and Candy Trademark Cases

A number of other cannabis companies have faced similar lawsuits—particularly cannabis products that mimic or parody major candy brands.

Skittles maker Mars Wrigley won a lawsuit in August 2022 against cannabis companies that mimicked the candy. Mars initially filed the lawsuit in May 2021, claiming that the illegal retailers infringed on Mars’s registered trademarks. 

Mars Canada Inc., global candy giant and Mars Wrigley, which oversees confections such as of M&M’S®, SNICKERS®, ORBIT®, EXTRA® and Skittles®, recently concluded a lawsuit involving the use of the Skittles logo on illegal cannabis products. On Aug. 12, a federal Judge Patrick Gleeson ruled that three online cannabis retailers “deliver up and destroy all infringing products and packaging,” and also pay various sums for infringing upon Mars’s trademark.

In August 2017, the Ohio-based glue company that produces Gorilla Glue took GG Strains to court due to the use of “Gorilla Glue” in numerous strain names. In February 2018, the company went after cannabis companies who were infringing upon the Hershey’s Chocolate trademarked products. In February 2019, a group of delivery businesses called United Pot Smokers, UPS420, and THCPlant, were brought to court by UPS (United Parcel Service) regarding misleading brand identifiers. Later in July 2019, Sour Patch Kids candy maker targeted an illegal cannabis edibles product called “Stoney Patch” for infringing upon the trademark.

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The original recipe for bright pink Peeps is at the center of a controversy involving potentially problematic chemicals found in many foods. While it’s generally understood that junk food contains poor ingredients, now we know more about which ones are particularly problematic, more specifically, potentially carcinogenic.

A bill to ban four food-related chemicals including red dyes advanced in California’s state Senate, after dropping a fifth chemical as the legislation was amended. 

While many candies across the board need to change their recipes to something healthier—pink-colored Peeps are among the ones that need it most. The bright pink color of Peeps is achieved through the dyes including erythrosine, a chemical that shows up on ingredient labels as “Red No. 3.” Other chemical dyes like titanium dioxide for white—also found in Peeps—have been linked to cancer. (To be fair, Skittles, Starburst, Ring Pops, Hot Tamales, and Trolli also use titanium dioxide to achieve bright colors in candy.) Peeps were introduced in 1953 as yellow marshmallow chicks designed for children, and the other bright colors with those ingredients followed decades later.

Assemblymember Jesse Gabriel, (D) representing California’s 46th State Assembly district in San Fernando Valley authored Assembly Bill 418, saying he wants to ban the chemicals—not necessarily the candy. According to Gabriel, the aforementioned chemicals have already been banned by the European Union (EU) and other countries. 

“It is unacceptable that the U.S. is so far behind the rest of the world when it comes to food safety,” Gabriel said. “This bill will not ban any foods or products—it simply will require food companies to make minor modifications to their recipes.”

Gabriel listed potassium bromate, brominated vegetable oil, and propyl paraben, which also have been banned in the EU, also as ingredients that need to go. An earlier draft of the bill would also have banned titanium dioxide, but amendments in the state Senate removed that chemical from the ban. Some of these ingredients can be found in practically any processed food including bread, Jell-O, and so on.

One case study published in the New England Journal of Medicine in 2003 involves a man who had growths on his fingers, pictured here, after consuming brominated vegetable oil in Ruby Red Squirt. (However, he drank eight liters per day.) 

Gabriel said last summer that alternative ingredients are readily available. Through expensive, albeit minor modifications to their recipes, the candy makers can do what’s already been done in the EU.

Gabriel quoted Mercury News, posting on X, “If candy makers won’t do the right thing, lawmakers must. The scientific studies provide sufficient concerns that California should not keep putting its children at risk.” 

The Food Industry’s 30-Year-Old Dirty Secret

Researchers have known the pigments to be carcinogenic for at least 30 years: In 1990, the U.S. Food and Drug Administration (FDA) banned the use of Red Dye No. 3 in cosmetic products like lipsticks, powders, blushes and skin care lotions, based on research suggesting that it can lead to cancer. If something isn’t safe for your skin, it might not be good to eat either.

If that makes you unsettled—considering how widespread the use of erythrosine and titanium dioxide is—you’re not alone: Last year, a consumer filed a lawsuit against Mars for knowingly allowing a “known toxin” to be used in candy products. The class-action lawsuit was filed in U.S. District Court for the Northern District of California, and attorneys for San Leandro resident Jenile Thames said Skittles are unsafe for consumption, having what they say are heightened levels of titanium dioxide.

In 2016, Mars said it would be phasing out titanium dioxide, aka E171, however that plan doesn’t appear to have materialized in full. Jaydee Hanson, Senior Policy Analyst, Center for Food Safety said at the time, “We are pleased to see that MARS has taken a positive step toward eliminating toxic, unnecessary nanomaterials from its line of food products. We urge the company to speed up the removal of these additives, especially given the grave health concerns associated with titanium dioxide and other nanoparticles.” 

Don’t Forget Aspartame

In other recent news, other ingredients have been flagged as carcinogenic. Aspartame is used in Coca-Cola’s Diet Coke and it’s also used to sweeten Mars’s Extra chewing gum.

Last summer, the World Health Organization’s (WHO) cancer research agency said aspartame is a possible carcinogen. WHO representatives contradictorily said aspartame may possibly cause cancer but also said it is safe to consume. IARC, WHO’s research arm, classifies aspartame as “possibly carcinogenic to humans” after it was found to lead to blood cancers in rats by Italian researchers. You be the judge.

The FDA also appeared to quell consumer alarm: “Aspartame is one of the most studied food additives in the human food supply. FDA scientists do not have safety concerns when aspartame is used under the approved conditions,” the FDA said in a statement.

Many people in the U.S. say they actually prefer candy with slightly less sugar and sweeteners. If candy in Europe feels safer than candy in the U.S., it is, and it’s not just the excessively high sugar content you have to worry about.

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A chorus of experts are growing concerned about the prevalence of candy-flavored cannabis products and other flavors that appeal to children in states with legal cannabis. 

Part of the uproar was spurred when a New York official showed a watermelon-flavored cannabis edible product to the local media amid the state’s first days of adult-use cannabis sales, taking place earlier this month.

The Associated Press reports that pressure is mounting to address the way cannabis products allegedly target children, with several individuals chiming in with expertise in epidemiology and tobacco control research.

“We should learn from the nicotine space, and I certainly would advocate that we should place similar concern on cannabis products in terms of their appealability to youth,” said Katherine Keyes, a professor of epidemiology at Columbia University.

“If you go through a cannabis dispensary right now,” she said, “it’s almost absurd how youth oriented a lot of the packaging and the products are.” 

New York’s adult-use cannabis market recently kicked off. The state’s adult-use law bans marketing and advertising that is designed in any way that appeals to children or other minors.

But the state’s Office of Cannabis Management (OCM) has not yet established defined rules on labeling, packaging, and advertising. What would a ban look like? Some concepts would ban images of food, candy, soda, drinks, cookies, or cereal on packaging. OCM officials believe these images could appeal to minors.

“Consumers need to be aware—parents need to be aware—if they see products that look like other products that are commonly marketed to kids, that’s an illicit market product,” said Lyla Hunt, OCM’s deputy director of public health and campaigns.

But when OCM Chief Chris Alexander showed a watermelon-flavored edible product to the media at New York’s first licensed adult-use cannabis store, people’s heads were rolling.

Per New York law, minors caught in possession of cannabis face a civil penalty of a maximum of $50. Licensed cannabis retailers who are caught selling to minors face fines and the potential loss of their licenses, but no jail time.

“When you’re talking about strawberry-cheesecake, or mango, or cookies-and-cream flavors, it’s very difficult to argue that those are for older adults,” said Dr. Pamela Ling, the director for the Center for Tobacco Control Research and Education at the University of California in San Francisco.

“Folks who consider themselves to be more like cannabis aficionados,” she said, “would say that smoking a flavored cannabis product is like putting ketchup on your steak.”

Haven’t We Heard this Before?

“Won’t somebody please think of the children?” Helen Lovejoy said on The Simpsons. Most adults store cannabis products in a place that’s out of reach from children and teenagers.

Similar bans on flavored tobacco products have taken place in numerous states over the last few years. The same hysteria has made its way into the cannabis industry.

California’s ban on flavored tobacco products took effect just weeks ago. The state’s particular ban went further to ban menthol cigarettes.

In Massachusetts in 2019, members of the state’s House of Representatives voted to prohibit the sale of flavored tobacco and vape products. And that’s not all. The vaping products that remain legal will be subject to a whopping 75 excise tax. 

In Oregon in 2019 as well, Gov. Kate Brown moved to ban flavored vape cartridges. But then the Oregon Court of Appeals sided with Dyme Distribution, a cannabis company that’s suing the state over its ban on cannabis vaping products. 

Cigarette use has fallen out of favor among teens, but the use of e-cigarettes and vapes has risen. The new focus on regulation is falling upon cannabis products.

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Mars Canada Inc., global candy giant and Mars Wrigley, which oversees confections such as of M&M’S®, SNICKERS®, ORBIT®, EXTRA® and Skittles®, recently concluded a lawsuit involving the use of the Skittles logo on illegal cannabis products. On Aug. 12, a federal Judge Patrick Gleeson ruled that three online cannabis retailers “deliver up and destroy all infringing products and packaging,” and also pay various sums for infringing upon Mars’s trademark.

“I also find that advertising and offering for sale of a potentially dangerous product using appropriated trademarks that are evidently and obviously attractive to children represents a marked departure from ordinary standards of decent behaviour that deserves to be denounced and deterred,” Gleeson wrote in the motion.

“I have placed significant weight on the issue of harm not only to the Plaintiff but also to members of the public who might accidentally consume the Defendants’ Infringing Product believing it to be a genuine SKITTLES product. The fact that SKITTLES are a confectionary product that are attractive to children reinforces the need to denounce the Defendants’ conduct,” Gleeson continued.

Mars initially filed the lawsuit in May 2021, claiming that the illegal retailers infringed on Mars’s registered trademarks. “Mars Wrigley strongly condemns the use of popular candy brands in the marketing and sale of THC products, which is grossly deceptive and irresponsible,” the company stated in a press release. “The use of Mars Wrigley’s brands in this manner is unauthorized, inappropriate, and must cease, especially to protect children from mistakenly ingesting these unlawful THC products.”

The company specifically mentioned products called “Medicated Skittles,” “Starburst Gummies,” and “Life Savers Medicated Gummies” that were being illegally sold on e-commerce sites in Canada and the U.S. According to a complaint filed in Riverside, California at the time, these products “pose a great danger to the public as anyone, children and adults alike, could easily mistake the infringing cannabis-infused products for Wrigley’s famous and beloved candies and inadvertently ingest.”

According to the National Post, Mars hired private detectives to purchase product lookalikes that infringed upon the company’s trademarks.

In August 2017, the Ohio-based glue company that produces Gorilla Glue took GG Strains to court due to the use of “Gorilla Glue” in numerous strain names. By October, a settlement was reached, which stated that Gorilla Glue #1, #4, and #5, would no longer be used, and instead be replaced with GG1, GG4, GG5, etc. The cultivator’s website domain would also be transferred to the Gorilla Glue company ownership by January 2020, among other stipulations.

Although it was a major setback, Ross Johnson, Co-founder of GG Strains and Gorilla Glue, was confident that that it could bounce back. “We’re going to survive; we’re going to overcome it,” Johnson said. “Is it a setback? Most definitely, it is a setback. But it’s all behind us now, and it’s allowing us to move forward.” Sadly, Johnson passed away in 2019, followed by his co-founder, Don Peabody (also known as Joesy Whales), in 2020, according to the Cannabis Business Times.

Similar legal moves have been made in regard to other famous trademarked brands as well. In February 2018, the company went after cannabis companies who were infringing upon the Hershey’s Chocolate trademarked products. In February 2019, a group of delivery businesses called United Pot Smokers, UPS420, and THCPlant, were brought to court by UPS (United Parcel Service) regarding misleading brand identifiers. Later in July 2019, Sour Patch Kids candy maker targeted an illegal cannabis edibles product called “Stoney Patch” for infringing upon the trademark.

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The U.S. Food and Drug Administration (FDA) once again cautioned people to keep their edibles out of reach from children, especially the ones with sketchy, colorful packaging that might appeal to children.

On May 13, the FDA issued a warning, sounding the alarm about lookalike products that mimic candy and more recently—children’s cereal.

Copycat products that were highlighted in the warning mimic Cap’n Crunch, Cocoa Pebbles, Cocoa Puffs, Froot Loops, Fruity Pebbles, Nerds Ropes, Starbursts, Sour Patch Kids, and Trix, among others.

There are two reasons not to support gray area cannabis products like these: the potential appeal to children being one, and the other being the ethical violation of blatantly ripping off the intellectual property of mainstream food companies. But the FDA was mainly concerned about the physical symptoms that could occur in children.

“The FDA is aware of multiple media reports describing children and adults who accidentally consumed copycat edible products containing THC and experienced adverse events,” the organization wrote. “Additionally, from January 2021 through April 24, 2022, the FDA received over 100 adverse event reports related to children and adults who consumed edible products containing THC.”

Symptoms to look out for include “hallucinations” and “vomiting.”

“Some individuals who ate these edible products reportedly experienced adverse events such as hallucinations, increased heart rate and vomiting, and many required medical intervention or hospital admission,” the warning continues. “Seven of the reports specifically mention the edible product to be a copycat of popular foods, such as Cocoa Pebbles, Nerds Rope, Skittles, Sour Patch Kids, and Starburst.”

Separating Dangers from Myth

Both CBD and THC show promise in pediatrics for mental and physical conditions in controlled doses, such as intractable epilepsy, but children’s small bodies usually can’t withstand THC like an adult. If a small child (or pet) consumes them by accident, it can quickly become “a situation.” All adults carry the responsibility of keeping their edibles out of reach, and most do.

But sometimes, hysteria makes these warnings seem less credible. For children and adults, a “whiteout” can be a scary experience, but “overdoses solely by marijuana are unlikely,” even the CDC admits. At the crack of October 1, we receive our annual warning about supposed cannabis-infused candy being passed out to children on Halloween, but sometimes said stories are debunked.

The FDA gave three recommendations in the event that a child consumes an edible:

• Call 9-1-1 or get emergency medical help right away if you or someone in your care has serious side effects from these products. Always keep these products in a safe place out of reach of children.
• Call the local poison control center (1-800-222-1222) if a child has consumed these products. Do not wait for symptoms to call.
• Contact your healthcare provider if you or someone in your care recently ingested these products and you have health concerns.

The FDA also gave three ways to file a complaint in a dark warning to people with nosy neighbors, living in fear of people dropping the dime and calling Child Protective Services. It’s unclear if the complaint avenues are intended for parents themselves or others.

“Health care professionals, patients and consumers are encouraged to report complaints and cases of exposure and adverse events to the FDA’s MedWatch Safety Information and Adverse Event Reporting Program,” the warning reads.

• Call an FDA Consumer Complaint Coordinator if you wish to speak directly to a person about your problem.
• Complete an electronic Voluntary MedWatch form online.
• Complete a paper Voluntary MedWatch form that can be mailed to the FDA.

Last year, over 100 people dialed in.

Copycat Edibles Are a Problem, Not Only for Children

As it turns out, mainstream food companies essentially want the same thing, but mostly for a different reason. On April 27, a group of a dozen major food companies called on Congress to crack down on the growing number of THC-infused copycat knockoffs.

“Children are increasingly threatened by the unscrupulous use of famous brand logos, characters, trademarks, and trade dress on THC-laced edible products. While cannabis (and incidental amounts of THC) may be legal in some states, the use of these famous marks, clearly without approval of the brand owners, on food products has created serious health and safety risks for consumers, particularly children, who cannot tell the difference between these brands’ true products and copycat THC products that leverage the brand’s fame for profit,” the companies wrote in the letter.

Parents with small children and teens are advised to double check that their edibles are out of reach from children.

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