What Recent THC Lawsuits Can Teach Us About Accuracy in Marketing

by | Apr 12, 2023

In cannabis, trust is paramount. Consumers need to understand that test results and labeling reflect what’s really in their cannabis products. For brands, building consumer trust is key to long-term success. Unfortunately, circumstances ranging from labs with inconsistent or unreliable testing procedures to intentional misrepresentation create situations where trust isn’t always a given.

Although favorable test results may provide a brand with a short-term boost to sales, they create the long-term risks of loss of customer trust, costly litigation, and potential regulatory consequences. As a result, it’s critical that cannabis brands do their due diligence to make sure their products’ test results and labeling are always as accurate as possible, creating a relationship with their customers that’s built on honesty and transparency.

Why are some consumers taking big-name brands to court?

Multiple cannabis companies have been named as defendants in class action lawsuits alleging they inaccurately portrayed the THC content of their products. While it’s important to note that being named in a lawsuit does not imply that any of the companies named in said lawsuits are guilty of the charges, it is an expensive prospect that should give all cannabis brands pause about what claims make it into their marketing materials.

The first of the recent lawsuits was filed in October 2022 against DreamField Brands, alleging that Jeeter pre-rolled joints were mislabeled, inflating THC content by as much as 23% in some cases. The brand denies the allegations, though plaintiffs claim independent testing found that joints labeled as containing 46% THC actually contained 23% to 27%.

By December 2022, other, similar lawsuits were filed against cannabis brands, including Stiiizy and Presidential Cannabis. In each lawsuit, plaintiffs alleged the brands labeled their cannabis products as containing more THC than independent lab test results revealed.

According to California state law, cannabis producers must label their products with accurate THC content within “plus or minus 10%” of actual levels. That’s a huge difference.

The lawsuits state that the alleged mislabeling constitutes false advertising that allowed companies to increase the price of the products. Whether the lawsuits are successful or not, they represent costly marketing missteps for the defendants, who will now need to enter litigation or settle with the defendants over their claims.

And it’s not just in California that lawsuits are cropping up. An Arkansas medical cannabis patient has filed suit against a testing lab and multiple growers. That lawsuit claims that the lab, Steep Hill, comes back with inflated THC percentages, thus incentivizing growers to work with the lab instead of other laboratories. That lawsuit, which is ongoing, was originally filed in Pulaski County Circuity Court, but was ultimately referred to federal court.

That’s the issue at the crux of these lawsuits: a phenomenon known as lab shopping, in which cultivators cherry pick those laboratories that provide them with favorable test results.

Lab shopping and THC inflation: How are they connected?

Lab shopping, or the practice of choosing a cannabis testing laboratory based on favorable results, has been a problem in legal cannabis markets from the beginning. In California, in particular, lab shopping has historically been commonplace, thanks to a lack of standardized regulations facing testing labs. 

Primarily, lab shopping involves finding the laboratory that produces the highest percentage THC results, since many consumers purchase products based on the THC potency (even though that metric is not the sole measure of cannabis quality.) In addition, though, it may even include submitting samples to different labs to pass tests like heavy metals tests or residual solvents tests, even when other samples may have failed elsewhere.

The state’s Department of Cannabis Control (DCC) is working on eliminating this practice from the California market. The DCC recently established a set of regulations governing testing laboratories with the goal of ensuring certificates of analysis (CoA) are accurate, consistent, and reliable.

Among those regulations are requirements that laboratories report all test results to the DCC, upload CoAs to the state’s track and trace system, and that distributors either destroy batches of goods that fail testing or remediate them under a DCC approved remediation plan. Laboratories must also become ISO/IEC 17025 accredited, establish standard operating procedures (SOPs), implement a quality assurance program, and participate in a proficiency testing program.

These regulations are meant to reduce instances of lab shopping or inaccurate results, which are key considerations for building consumer trust in brands and the market at large.

It’s not all about THC: Marketing cannabis products responsibly

The root of the problem comes back to a misconception about what cannabis marketing should do: When focus is on the sale, education gets lost in the sauce (pun intended). Consumers in legal cannabis markets generally seek out products with high percentages of THC, and these high-THC products can fetch higher prices as a result. The market responds in kind, breeding flower and manufacturing products that meet this demand.

While it might seem counter-intuitive, this shortsighted approach has a few key drawbacks.

Bust the high THC myth

Most consumers, and particularly in adult use markets, seek out high THC products because they believe, since THC is the primary compound that causes intoxication, more THC will make them feel higher. As a result, brands have raced to produce higher THC products, encouraging mislabeling or overestimating of THC content, either inadvertently or deliberately. 

Consumer education, though, rejects chasing this market dynamic that’s based in popular misconception. Brands that educate consumers through thoughtful, omnichannel content marketing campaigns can help dispel the myth that, not only does more THC not equate to greater product quality, but it doesn’t even mean a product will make you feel higher. 

Cannabis contains more than 100 phytocannabinoids and 200 terpenes, many of which have the potential to alter the consumption experience through the entourage effect. These compounds can significantly alter how high a consumer feels, or what types of feelings they experience. 

For example, a cultivar (strain) that’s high in THC but also high in CBD may result in less intoxication than a cultivar that contains less THC but no CBD. Similarly, a cultivar that contains high levels of terpenes like myrcene and linalool may be more likely to result in feelings of drowsiness and couch-lock, while those with high levels of limonene and pinene may be more likely to prompt an uplifting and energizing experience.

By educating consumers about this reality, brands can help their customers choose products more wisely and build trust with their consumers. Even when consumers are after the most potent possible high, elevated THC percentage isn’t always their best bet — and a well-crafted content marketing campaign helps inform them of their best options. 

Avoid running afoul of regulations and social channel terms of service

In the lawsuits, it’s alleged that companies have violated a California law that THC percentage must be accurately labeled within 10%. Importantly, there’s natural variability between plants, and it’s possible that products from the same batch can have different THC percentage measurements. Of course, brands are required to include cannabinoid content on the labels of their products, but there is no such requirement that their broader marketing campaigns be focused on THC percentage.

Brands that rely on high THC driving most of their sales, claiming they offer the highest percentage of THC on the market, are opening themselves up to repercussions from regulators and legal action. Those who instead prioritize consumer education and establish themselves as trustworthy sources in the cannabis industry can secure loyalty and repeat purchases. Best of all, educational content generally doesn’t violate state regulations and, in many cases, can even be shared on social media channels without violating most platform’s terms of service.

Of course, basing a content marketing strategy on consumer education means a dedication to informing consumers before selling them. Always bear in mind that, while tactics like exaggerating THC percentages may be the fashion of the day, content marketing for consumer education is about long-term stability through building consumer trust and brand loyalty. 


Cannabis content marketing for consumer education

Putting education first in your cannabis content marketing strategy means sometimes prioritizing the reality of a product’s effects than leaning on hype. Rather than lab shopping to find the test results that provide the most favorable THC percentage, for example, a brand could create content educating consumers as to why there’s a lot more to cannabis quality than just how much THC a sample contains.

Content marketing means reaching your target audience on multiple channels as well. So, while you might host the bulk of your content on a blog on your website, think about how you can adapt each piece to other channels too. Content should be developed with social media and email marketing in mind, for example. Advertising in partnership with key retailers can help drive your message home. Or, if your audience frequently reads a particular publication, see if you can submit an article or sponsor content there. 

The purpose of educational content marketing is to establish your brand as a trusted source of information, forward thinking entity in the space, and purveyor of quality products and services. Where other brands might engage in questionable tactics like lab shopping, a well-crafted content marketing campaign instead dispels those smoke and mirrors to help consumers understand what’s actually important when choosing cannabis products. And, best of all, it’s an honest approach that, when done with regulatory compliance in mind, won’t later land a brand in hot water with consumers and officials.

Choose consumer education over deceptive advertising

Brands that make lofty claims may drive sales in the short term, but they’re likely to come crashing down if those claims are proven to be false. Instead of trying to deceive consumers or over-hype your products and services, choose instead to educate them about the realities of the space in which you operate. Help your target audience make the best possible choice for them, rather than pushing them to buy now through disingenuous marketing tactics. In the end, the result will be a loyal customer base, a wider reach, and insulation from lawsuits and fines that less scrupulous brands will inevitably suffer.

If you need support for your cannabis brand’s digital marketing efforts, contact CannaContent today for a specialized proposal tailor-made for your business’s needs.