Pot-flavored pops a hit with candy lovers, but not lawmakers By Mallory Simon, Court TV
At Spencer's Gifts store in New York and Chicago, lollipops are flying off the shelves. The stores keep restocking, and people keep buying.
The draw? The suckers are marijuana-flavored, and they have grabbed the attention of consumers who want to try them and novelty stores in several states who are hoping to cash in.
One company, Chronic Candy, which sells four different flavored pops and other marijuana-themed items, ships 100,000 pops a month to stores and through online orders, according to its president, Tony Van Pelt.
New Jersey-based ICUP Inc., sold similar products called "Pot Suckers" as a part of their "Stonerware" product line, but because of the recent legal debate, has suspended all marketing and further production of the lollipops, according to their Web site. ICUP Inc. representatives did not return calls for comment.
While the pops lack THC, the high-creating ingredient in marijuana, some lawmakers are more worried about the buzz they have created among children.
Last week the Chicago city council passed a ban on all marijuana-flavored candies, including the ones Van Pelt manufactures. The ban, which became effective immediately, allows the city to fine a store or person $100 to $500 for selling the product in Chicago. Similar legislation is in the works in New York and Minnesota.
The lollipops, some packaged with the slogan "Every lick is like taking a hit," became the target of an investigation by Illinois Attorney General Lisa Madigan, who urged lawmakers to put a stop to their sale. So far, the Chicago city council is the only state group to act on her recommendation.
Madigan argued that marijuana-flavored candies encourage drug use among kids and have no place in stores where kids shop. In banning the pops, the city council said the flavored pops glamorized drug culture and could encourage kids to use marijuana.
Van Pelt contends that his pops were never marketed toward kids, and notes that, when concerns began to arise about the candy, he changed the packaging and added warning labels.
"If there's a way to keep these out of kids' hands, I'll do it," Van Pelt said.
But lawmakers point to the company's continued use of drug slang as evidence to the contrary. On Chronic Candy's Web site, the lollipops are listed in quantities of "One Ounce," "Half Ounce," "Twenty Sack," and "Nickel Bags," terms often used in the sale of marijuana.
Although the company has stopped shipping to Chicago, Van Pelt plans to take his case to court.
"This product is 100 percent legal and there's no reason to ban it," Van Pelt said. "This is my dream. Everyone has a dream and I've put in blood, sweat and tears and everyone who works for me has too."
These candy complaints wouldn't be the first marketing tactics debated in court, or the first to be challenged. Tobacco and alcohol companies have been in-and-out of legal battles regarding whether their products are marketed to children.
In April, alcohol companies were hit with lawsuits claiming images like the Budweiser frogs and Captain Morgan were used to attract underage drinkers. Similar accusations were previously brought against R.J. Reynolds that claimed the character Joe Camel was aimed at getting kids to smoke. The cartoon camel rode off into the sunset in 1998 as part of a massive tobacco settlement.
"The law does tolerate a certain number of legal restrictions on products that attempt to target children," said Thomas Morsch, a professor of law at Northwestern University in Chicago. "There is often a balancing between the economic freedom to sell and [freedom of] speech to advertise with the great American tradition of needing to protect citizens from something potentially dangerous or unhealthy."
However, without a direct health threat from the pops, if Chronic Candy plays their cards right, Morsch said the company could have a shot at winning a suit.
"There are many products that are made to taste like some illicit drug, but that doesn't make it illegal," Morsch said. "He has a right to add to his product any legal substance he wants to as long as it's not detrimental to the health of consumers. People make things that taste like bourbon or rum, so I think you can add to make it to taste like marijuana."
The major difference, however, is that both alcohol and tobacco become legal after consumers reach a certain age. Because marijuana is illegal for everyone, the precedents may not necessarily apply.
"A product can be banned because legislatures don't like it, or because you get a majority vote," said Eugene Volokh, law professor at UCLA. "In some states, they ban the sale of horse meat, not because horses have a right to life, but just because the government thinks it's icky. There is no constitutional right to eat what you like or sell what you want to sell."