Why a Federal Marijuana Legalization Bill is Imperative
Marijuana legalization was a big winner in last November’s elections. 5 states overwhelmingly voted to legalize marijuana for both recreational and medical use, and 11 other states as well as the District of Columbia already approved recreational marijuana use before Election Day. Is federal marijuana legalization on the horizon? Clearly, there is a shift in national opinion on marijuana.
On December 4, the House of Representatives passed a marijuana legalization bill called the MORE Act. This is the first time either house of Congress ever voted on the issue. The bill would not only decriminalize its use, but also remove it from the federal Controlled Substances Act. However, the current Senate is unlikely to take up the bill, stalling any sweeping reform on the matter.
Despite state-level advances and obvious momentum towards marijuana legalization, there’s a long road ahead. As long as marijuana is on the federally controlled substances list as a Schedule 1 narcotic, CBD products can’t get IP protections.
The Controlled Substances Act (the “CSA”) is the last and most difficult hurdle for marijuana legalization. Passed in 1970, the CSA is the supreme law on cannabis use. Over the last few decades, states may have enacted their own bills regarding marijuana cultivation, but without a bill overturning this section of the CSA, cannabis companies are unlikely to gain any USPTO trademark protection.
For instance, the Trademark Trial and Appeal Board (“TTAB”) affirmed a USPTO decision that denied an application for “hemp oil extracts sold as an integral component of dietary and nutritional supplements.” The applicants, the Stanley Brothers, made products containing cannabidiol (“CBD”). They sought to get the mark “CW Hemp” registered to label their brand. The USPTO based their decision on the CSA which still considers marijuana use to be illegal and unlawful.
The 2018 Farm Bill created an exception to the outright marijuana prohibition for “industrial hemp.” This industrial hemp exception allowed for the growth and cultivation of the cannabis sativa plant that contains less than 0.3% THC as allowed by state law. While the Farm Bill allows the growth of industrial hemp, it doesn’t go much farther. The Farm Bill does not protect or create any more exceptions for the illegal use of hemp after it is cultivated. Therefore, cannabis companies, such as the Stanley Brothers, are barred from seeking any federal IP protections.
Ultimately, the TTAB decision to affirm the Stanley Brothers decision will stand as precedent so long as the CSA stand on marijuana is the law. Cannabis use will continue to be a developing matter in politics as many argue that the criminalization of marijuana has disproportionately impacted people of color. The future of cannabis use is unclear as a new balance of power is established in the next year. Regardless, it is imperative to the future and progression of cannabis use to reform the CSA.
