Despite Lawful Use in Commerce, Hemp and CBD Trademarks May Still Face Rejection

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In a previous Legal Alert, we covered the removal of one impediment to federal trademark registration for hemp/CBD products: namely, that hemp/CBD products will no longer be outlawed by the Controlled Substances Act and will now be considered a “lawful use in commerce.” This, however, was not the only impediment to trademark registration for hemp/CBD products.

Rejections under the Food, Drug and Cosmetic Act (“FDCA”) are one problem faced by applications claiming hemp/CBD products. This act authorizes the FDA to oversee the safety of food, drugs, medical devices and cosmetics. One section of the FDCA in particular prohibits the introduction into interstate commerce of a food with the additive of a drug or a biological product for which substantial clinical investigations have been instituted, and for which the existence of such investigations has been made public: 21 U.S.C. §331(ll). There are a few exceptions to this rule, but none appear to currently apply to CBDs. Pursuant to this law, the FDA has determined that it is not lawful to sell a food or dietary supplement to which CBD has been added.

For example, a company applied to register the trademark CBD MEDIC for various creams, oils and dietary supplements containing CBD. The application was rejected under not only the Controlled Substances Act (which will soon no longer be an issue); but also the “dietary supplements” portion of the FDCA. Namely, the United States Patent and Trademark Office (USPTO) stated that the dietary supplements at issue contain “ingredients that are not authorized by the FDCA to be introduced into interstate commerce.” The USPTO even rejected the argument that cannabis had been approved for medical or therapeutic purposes in certain states.

It is unclear whether this rejection with regard to food and dietary supplements containing hemp/CBD will continue to be raised after the 2018 Farm Bill is signed into law. At the same time, there are ways the federal government could obviate the rejection, such as if the Secretary of Health and Human Services were to issue a regulation, after notice and comment, approving the use of CBD in food.

If you have a hemp/CBD product or are planning to launch a hemp/CBD product, now may be the right time to file your application. However, given the complications caused by the FDCA, we suggest consulting with a cannabis trademark attorney first.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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