This month, the USPTO issued a new examination guide titled “Examination of Marks for Cannabis and Cannabis-Related Goods and Services after Enactment of the 2018 Farm Bill.” In light of the passage of the 2018 farm bill, the USPTO will now consider registering trademarks for some hemp-based goods and services. According to the USPTO, marks can be registered as long as the product is not regulated by the U.S. Food and Drug Administration and doesn’t fall under the federal definition of marijuana. The guide breaks down which cannabis and cannabis-derived products will be eligible for protection based on their “lawful use.” The lawful use requirement, as explained by the USPTO, mandates that “use of a mark in commerce must be lawful use to be the basis for federal registration of the mark.” TMEP §907, citing to 37 C.F.R. §2.69 and §§1, 45 of the Lanham Act. In other words, if a product cannot be legally sold in interstate commerce then, according to the USPTO, the mark cannot be used legally in interstate commerce and, lacking trademark use, the trademark cannot be registered. The USPTO stated that for applications filed on or after December 20, 2018 that identify goods encompassing cannabis or CBD, the 2018 Farm Bill potentially removes the CSA as a ground for refusal of registration, but only if the goods are derived from “hemp.” Cannabis and CBD derived from marijuana (i.e., Cannabis sativa L. with more than 0.3% THC on a dry-weight basis) still violate federal law, and…

Yesterday,  the House/Senate Conference Committee for the 2018 Farm Bill  sat down for the first time to try to hash out the differences between the two versions of the bill, with the hopes of passage by September 30, 2018, when the 2014 Farm Bill expires. Under the Controlled Substance Act, hemp is currently listed under Schedule I, a federally controlled substance, in the same legal category as heroin and LSD. The bill would not legalize marijuana for recreational or medical uses, but would remove hemp from the Controlled Substances Act legalizing the plant federally and allowing it to be cultivated, processed, and sold as an agricultural product. Individual states would be authorized to draft their own hemp regulations without fear of the DEA’s interference. Hemp is commonly used in clothing, food, lotion, beauty products, and most recently popularized for its uses in products made with cannabidiol (CBD), a cannabinoid that can be extracted from cannabis in both its marijuana and hemp forms. If the 2018 Farm bull passes, it would include the legalization of the hemp derived version of CBD. If passed, the 2018 Farm Bill would remove restrictions and allow farmers to grow hemp domestically without the fear of violating the law. Proponents of the legalization of marijuana still have a ways to go, but the legalization of hemp would certainly be a step in the right direction.

Malkin Law recently wrote about how hemp may be used in alcohol products for SevenFiftyDaily. TTB had previously not provided much guidance on this topic since releasing its hemp policy in 2000. Now, TTB released, through an FAQ, additional explanation. This does not change the hemp policy, but merely provides some clarification. The FAQ is pasted below for convenience: Will TTB approve any formulas or labels for alcohol beverage products that contain a controlled substance under Federal law, including marijuana? TTB will not approve any formulas or labels for alcohol beverage products that contain a controlled substance under Federal law, including marijuana. The Controlled Substances Act (CSA), 21 U.S.C. § 802(16), defines marijuana as all parts of the Cannabis sativa L. plant (and its derivatives) with certain specific exclusions. Substances (such as tetrahydrocannabinols (THC), cannabidiols (CBD), or terpenes) that are derived from any part of the cannabis plant that is not excluded from the CSA definition of marijuana are controlled substances, regardless of whether such substances are lawful under State law. See Drug Enforcement Administration (DEA), Clarification of the New Drug Code (7350) for Marijuana Extract for more information about DEA’s position on cannabis derivatives. The parts of the cannabis plant that are excluded from the definition of marijuana in the CSA (referred to here as “hemp” ingredients) include hemp seed oil, sterilized hemp seeds, and non-resinous, mature hemp stalks. Formula approval from TTB is required before a hemp ingredient may be used in the production of an alcohol beverage product. In determining whether a hemp ingredient is allowable for…