The cannabis industry continues to evolve, and with it, the challenges and opportunities for cannabis marketers.
This blog post is a summary of the important questions and answers that came up during part four of Cannabis Marketing Association’s 2024 Cannabis Marketing Summit web series, “Ask a Marketer Anything: Legal and Compliance,” with Max Hass Esq., an entertainment and IP attorney at Holon Law Partners. CMA members got to hear Max’s take on rescheduling and ask him their legal and compliance questions during this open forum.
Max delved into the intricacies of cannabis marketing, trademark law, and the impact of rescheduling on the industry. This blog post was crafted in collaboration between Cannabis Marketing Association and the AI tool, Perplexity. All content was reviewed and fact-checked by a human.
With rescheduling imminent for the summer of 2024 — it’s important to understand basic information about rescheduling and 280E when discussing legal and compliance issues.
The Current State of Cannabis Marketing
Cannabis marketing is largely regulated at the state level, with varying rules and quirks in each state. This creates a challenging environment for cannabis businesses, particularly multi-state operators (MSOs), who must stay up-to-date on regulations across multiple jurisdictions. Local regulations, zoning laws, and municipal opt-outs further complicate the picture, making it essential for businesses to be aware of these nuances.
The Role of Trademark Law
Federal trademark registration is currently prohibited for cannabis products due to their Schedule I status. However, this may change with rescheduling. While it is uncertain how the US Patent and Trademark Office will handle applications for cannabis trademarks, guidance will likely be provided in advance. This could open up new opportunities for cannabis businesses to strengthen their brands and protect their intellectual property. There have been opinions issued by the courts recently that demonstrate the evolving nature of this area of law. Jay Kotzker, a partner at Holon Law, dives further into this topic as a guest on Cannabis Marketing Association’s podcast, Party Like A Marketer.
The Impact of Rescheduling
Rescheduling cannabis from Schedule I to Schedule III could have significant implications for the industry. While it would allow for federal trademark registration, it would also subject cannabis to FDA regulation, potentially creating a new layer of complexity. The interplay between the trademark office and the FDA remains unclear, but guidance will likely be provided in the coming years.
The Importance of Expert Guidance
Cannabis businesses often rely on non-legal professionals, such as graphic designers or digital marketers, for compliance guidance. However, this can be risky, as these individuals may not have the necessary legal expertise. Businesses must consult with attorneys or compliance specialists who are well-versed in cannabis law to ensure they are operating within the bounds of the law.
Key Questions and Answers
Will the DEA provide additional rules outside of rescheduling?
The DEA may create more rules or change existing ones, and once cannabis is rescheduled, the FDA will likely issue its own rules for cannabis products. Currently, the DEA’s public comment period is open through July 22, 2024, before an official rescheduling announcement.
How can cannabis marketers stay updated on regulations?
It is essential to consult with attorneys or compliance specialists who are experts in cannabis law, rather than relying on non-legal professionals. CMA has tools that make it easy to know where this information lives. There are also many of these service providers within the CMA membership.
What is the role of an examining attorney in the trademark process?
An examining attorney is a USPTO official who reviews trademark applications and ensures compliance with regulations.
How will rescheduling affect federal tax laws?
The IRS will likely issue new rules or interpretations, but changes to tax rates would require congressional action.
Conclusion
The cannabis industry is poised for significant changes, and cannabis marketers must be prepared to adapt. By staying informed about regulatory developments and seeking expert guidance, businesses can navigate the complexities of cannabis marketing and position themselves for success in this rapidly evolving landscape.
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CMA Members: log into the Member Portal to watch the full recording and register for the entire virtual “Ask a Marketer Anything” Cannabis Marketing Summit mini-series here. All sessions will be recorded and available in the Member Portal.
