would you approve it? cannabis

Last Thursday (May 2, 2019), the USPTO issued Guidance for the examination of trademark applications for hemp and cannabidiol (“CBD”) containing goods. The guidance comes after the enactment of the 2018 Farm Bill, which exempted hemp (i.e., cannabis sativa L. with a delta-9-tetrahydrocannabinol (“THC”) concentration of not more than .3% on a dry weight basis) and its constituents (e.g., CBD) from the definition of “Marihuana” [sic] in the Controlled Substances Act (“CSA”). As a result of the Farm Bill, hemp is no longer a controlled substance.

The USPTO refuses to register marks for goods and/or services that show a clear violation of federal law, regardless of the legality of the goods/services under state law. Previously, this included goods that contain hemp or CBD – both of which were controlled substances.

The USPTO has indicated that applications filed on or after the effective date of the Farm Bill (December 20, 2018), which identify goods that are, or are derived from, hemp, may proceed towards registration, provided the identification of goods specifies that they contain less than 0.3% THC. Additionally, applicants who filed before December 20, 2018 will have the option to amend the filing date of their applications to December 20, 2018, and also be required to amend the identification of goods.

Importantly, the Farm Bill explicitly...

Until about 10 years ago, there were quite a few beers made with hemp available in the US. Then TTB/ATF put out a policy and also said:

On April 6, 2000, ATF issued a policy on the use of hemp or hemp components in alcohol beverages and on the use of the term “hemp” or depictions of the hemp plant on labels for alcohol beverages. The policy does not ban the use of hemp in alcohol beverages, but was created to assure that beverage alcohol products do not contain a controlled substance (tetrahydrocannabinol (THC)). ATF also determined that the appearance of the word “hemp” or depictions of hemp plants on labels was likely to create a misleading impression as to the true identity or quality of the product. As of this writing, there are no approved certificates of label approval for products containing hemp.

Slowly but surely, however, in recent months various beers with hemp are starting to re-emerge and three of them are highlighted in this post. For the uninitiated, hemp happens to be a member of the cannabaceae family, a cousin of hops and close kin of marijuana (or cannabis). Above is O’Fallon’s Hemp Hop Rye, an amber ale brewed with hemp seeds and approved earlier this year. The label mentions...