CBD is hot. Starlets tweeted about how their CBD foot cream helped them survive their high heels during the Golden Globes, a recent study showed that 7% of the US population is taking CBD as a supplement, and CVS will now be offering CBD products in over 800 stores in 8 states. CBD is sold in innumerable products and forms, including bath salts, gummies, pet treats and vape cartridges. Analysts are predicting the CBD market could reach $16 billion by 2025.
For the unfamiliar, CBD is short for cannabidiol. It is one of over a hundred cannabinoids that can be found in cannabis plants. CBD is not psychoactive like its cannabinoid cousin tetrahydrocannabinol (THC for short). While the decades-long federal illegality of cannabis has severely limited research on the medical benefits of cannabis, CBD has been shown to have anti-inflammatory effects at a minimum. In 2018, the FDA approved the first drug where CBD is an active ingredient, Epidiolex, for treatment of some rare and severe forms of epilepsy. In a mostly unregulated marketplace, CBD has become a sort of panacea, used to treat pain, anxiety, acne, sleep and lowered libido. With this explosion in popularity and CBD brands, there comes an associated desire to protect these brands via trademark registrations.
To summarize the current status of the law– any federal trademark application for cannabis “plant-touching” goods or services will not be granted registration. The main reason cited by the U.S. Patent and Trademark Office (“PTO”) for these refusals is that cannabis is a Schedule I drug under the Controlled Substances Act. It is worth noting the PTO has also refused trademark applications for cannabinoid-containing foods and beverages on the basis of their illegality under the Federal Food, Drug and Cosmetic Act.
A major development in the law relating to cannabis was the passage in December of the Agriculture Improvement Act of 2018, commonly known as the Farm Bill. The 2018 Farm Bill effectively made hemp (which has extremely low amounts of THC by definition) federally legal, and removed it as a Schedule I drug. The prevailing presumption has therefore been that the Farm Bill made CBD derived from hemp legal as well. This is an oversimplification and not entirely accurate. Notably, the U.S. Food and Drug Administration released a statement immediately after the passage of the Farm Bill stating that the addition of CBD to food products and dietary supplements is unlawful.
As a result, it appears that trademark applications for CBD containing foods, beverages and supplements will still not be approved by the PTO due to their illegality under the FDCA. There is light at the end of the tunnel, however, as the FDA will start conducting hearings regarding CBD in April, and has stated its intention to introduce CBD regulations in the future.
As the FDA proceeds down this path, the PTO appears to be taking a wait-and-see approach. While trademark applications are typically examined within three to five months of submission, we have found that a number of applications for products containing CBD have been pending without examination for over a year. The industry can only hope that as the FDA clarifies its stance in relation to CBD, this impasse will be cleared and CBD trademark applications will be granted.
Our attorneys are constantly monitoring changes in the law relating to cannabis and CBD, and strategizing with our clients to take advantage as opportunities arise.