Late last week, the unredacted version of the Department of Health and Human Services’ (HHS) August 29, 2023, recommendations to the DEA to reclassify cannabis sativa L. (marijuana) from a Schedule I to Schedule III controlled substance was made public. These recommendations followed President Biden’s October 6, 2022, request that HHS review the scheduling of marijuana under the Controlled Substances Act, utilizing an eight-factor test, ¹ to assess whether there is abuse potential compared to other drugs, assess whether there is a currently accepted medical use for treatment or an accepted medical use with severe restrictions in the United States (CAMU), and determine the relative safety or ability to produce physical dependence compared to other drugs. Unlike a prior review in 2015, which then led to the denial of a reclassification, the current review process benefitted from the current widespread medical marijuana use, under health care practitioner supervision.

Currently, 38 states and the District of Columbia have passed laws allowing for the use of marijuana for medical purposes. Additionally, the 2018 Farm Bill, which has been the operative bill for determining whether a cannabis product or service is registrable under federal trademark law, decontrolled CBD derived from hemp that contained no more than 0.3 percent delta 9-THC on a dry weight basis.

What does this mean for current and future cannabis product trademark owners?

With these recommendations, made last summer and now public in its unredacted form, it is generally assumed that the U.S. Drug Enforcement Administration (DEA) will codify these recommendations, leading to the further ability of cannabis trademark owners to more broadly claim national trademark rights, pursuant to federal law. Currently, trademark registrations for products, and services are limited to those related to production and research of products derived from hemp containing less than 0.3 percent delta 9-THC.  There have been only three exceptions made.

Although it has been predicted that a change in classification may come in 2024, trademark owners are cautioned not to jump the fence. A trademark application is only good as current law—any premature filings that cover goods and services beyond the current threshold of “hemp containing less than 0.3 percent delta 9 -THC” will be denied. If and when the rescheduling occurs, cannabis-related trademark owners should consider new federal trademark filing strategies, as existing applications and registrations that conform to the current state of the law cannot be expanded to cover a broader range of cannabis-related goods or services.

Stay tuned for expected changes this year.

^{1 1. Actual or relative potential for abuse; 2. Scientific evidence of pharmacological effect, if known; 3. State of current scientific knowledge regarding the drug; 4. History and pattern for abuse; 5. Scope, duration, and significance of abuse; 6. Public health risk, if any; 7. Psychic or physiological dependence liability; 8. Whether the substance is an immediate precursor of a substance already controlled.}

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.