German Court Ruling Now Allows Hemp in Food

To be clear, the recent court decision is not specifically related to hemp in food, but by clearing hemp tea sellers of trafficking charges, the German court ruling opened a door to allow hemp products in food.

The world of cannabis just got bigger as a German court ruling opened the door for hemp to be used in food. This is as exciting as the advent of delta-8 THC products, and the ability to get the same kind of benefits as standard THC, while experiencing less psychoactive effects, and less anxiety. We can even help you get started if you’re a beginner with this new THC. Check out our awesome delta-8 THC deals, and join in on the excitement!

Germany and cannabis

Before getting into how a German court ruling on drug trafficking could allow hemp in food, let’s take a look at how cannabis is governed in Germany. According to Germany’s Federal Narcotics Act, cannabis possession is illegal and offenders can face up to five years in prison. Use crimes are not specifically mentioned in the Act, and therefore, offenders are usually sent to some kind of program instead of prison, at least for small amounts. In Germany, the term ‘small amount’ is judged not by the quantity held, but the quantity of THC within the product. And different regions of Germany use different amounts to denote this ‘small amount’. Generally speaking, it means in the neighborhood of 6-15 grams.

Cultivation, sale, and supply crimes are all illegal. Most of these crimes can earn an offender up to five years in prison, although supply crimes can go up to 15 years, depending on the specifics of the case. Supplying to minors, using weapons, and/or having very large quantities are some of the extenuating factors that can lead to higher prison sentences.

Germany does have legal medical cannabis. This started in 1983 with nabilone – a synthetic derivative of THC. In 1998, the pharmaceutical THC medication dronabinol was also approved. However, it wasn’t until 2017 that the country instituted a real medical cannabis program, opening the door for more disorders to receive treatment with cannabis medications. Since 1996, Germany has also allowed the legal cultivation of industrial hemp.

German ruling hemp food

In 2019, Germany passed a law to institute a regulated system for the export of medical cannabis products. In that same year, Germany was both the biggest importer AND exporter of cannabis oils in the EU. Obviously, there’s a disconnect here, as Germany is putting precedence on its export market, rather than supplying itself first.

In 2019, Germany paid out approximately $240.9 million for cannabis oil imports, making up 7.8% of the market that year. It was second only to the US. That year it also exported $229.8 million, making it the 4th biggest global exporter of cannabis oil, and the biggest out of the EU, accounting for 8% of the global market.

What is this hemp tea case?

The German hemp tea case involves Marcel Kaine and Bardia Hatefi, operators of the store Hanfbar, in Braunschweig, Germany. Hanfbar was a retail store that was selling hemp tea. It was announced in 2020 that prosecutors in the case were seeking jail time of three years, and 2.5 years respectively, according to the newspaper Braunschweiger Zeitung. Hanfbar had been selling CBD oil, as well as hemp food and drink products since 2017.

The meat of the case is in the idea that hemp tea is technically banned under the German Federal Narcotics Act. The reason for this, is that the law states that hemp products can’t be used for the purpose of intoxication. Ingestible products are generally regulated by (BfArM) the German Federal Institute for Drugs and Medical Devices, which follows rules set by (BfR) Germany’s Federal Institute for Risk Assessment. BfR is a part of the Ministry for Food and Agriculture which offers scientific advice for food consumption regulation. The Ministry of Food and Agriculture set the following guidelines about THC use in ingestible products:

  • Beverages can have up to 5 micrograms per kilogram of beverage
  • Oils can have up to 5,000 micrograms per kilogram
  • Food products can have up to 150 micrograms per kilogram

The defendants in the case argued that the charges were unjust, and that similar products were already widely available. Hanfbar is actually a vegan café, and the products being sold were hardly meant for intoxication. In fact, the view on hemp according to Hanfbar, is that its “the key to a sustainable and conscious lifestyle.”

hemp tea

Prosecutors claimed the defendants showed a “blatant lack of understanding about the illegality of their actions”, and were unable to be worked with given their indifference to previous police raids. The defendants in question were originally charged with drug trafficking…for selling hemp tea, and found guilty! As it turns out, the prosecutors are now eating their words.

German court ruling now allows hemp in food products

On March 26th, 2021, it was reported that (BGH) Germany’s Federal Court of Justice, annulled charges against both Kaine and Hatefi. They did so on the basis that the Narcotics Act does not actually ban the sale of hemp leaves and flowers directly to consumers for consumption. By overturning this case, going against a regional court ruling, and setting this new legal precedent, the high court of Germany just opened the door for hemp to be used in food products throughout Germany.

The Federal Court of Justice didn’t come down on lower courts for an error in judgement, but it did state that regional courts had not fully examined whether the defendants had meant their products to be used for intoxication purposes.

According to Hempro International GmbH, one of Germany’s leading hemp companies, “From now on it is more a matter of the actual intake of the psychoactive substance THC… The supply and possession of unprocessed industrial hemp products to end consumers is therefore not subject to the Narcotics Act as long as deliberate abuse for intoxication purposes is excluded.”

Hempro, for its part, has current legal proceedings of its own regarding cannabis. The company is actively suing the city of Düsseldorf after it banned marketing and sales of CBD products in extract form. It also has a case against the city of Braunschweig since 2019, which contests the city’s use of a stop-sell order that was levied against one of the company’s wholesale buyers. In light of this legal reversal for Kaine and Hatefi, Hempro hopes that its own cases will be resolved soon.

The verdict was also celebrated by (BvCW) Germany’s Cannabis Industry Association, which released the statement: “This means a great relief for the sellers, who have so far been often affected by raids that damage their business.”

EU and cannabis

What next?

It’s possible this verdict will, in fact, influence the cases Hempro has in the works currently. The more substantial outcome, however, is that the highest court in Germany just said that so long as the intention is not to cause intoxication, that hemp leaves and flowers can be used in food and beverage products at will. As most people don’t go to hemp when looking for intoxication, this would include pretty much any edible hemp-based product.

The case also highlights how a ruling in one specific avenue, can have resounding effects throughout an entire industry, and beyond. This is similar to France vs the EU, where the EU’s ruling that France cannot restrict imports of CBD oil into France by other EU countries – that were made in compliance with EU law, made CBD legal throughout all of the EU. In the current case, by Germany trying to put a couple guys out of business, what the country actually ended up doing, was expanding the legal boundaries of the hemp industry to include food and beverage products.


There’s something special about a case like France vs the EU, or the German hemp tea case. Maybe because the intent was so malevolent, that the opposite and stronger outcome feels that much more like a victory. And in both instances, new case law was essentially formed by governments trying to impose unnecessary and unfair restrictions on their people, and losing. So, here’s to Marcel Kaine and Bardia Hatefi, two of today’s current cannabis heroes, who successfully fought to overturn their verdict, and in doing so, elicited a German court ruling that now allows hemp to be used in food.

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Disclaimer: Hi, I’m a researcher and writer. I’m not a medical professional, I have no formal legal education, and I’ve never been to business school. All information in my articles is sourced from other places, which are always referenced, and all opinions stated are mine, and are made clear to be mine. I am not giving anyone advise of any kind, in any capacity. I am more than happy to discuss topics, but should someone have a further question or concern, they should seek guidance from a professional in the relevant field for more information.

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Thursday, April 8, 2021 Headlines | Marijuana Today Daily News

Marijuana Today Daily Headlines
Thursday, April 8, 2021 | Curated by host Shea Gunther

// Virginia moves cannabis legalization to July 1 2021 (Leafly (AP))

// Investigators in Matt Gaetz inquiry looking into Bahamas travel sources say (NBC News)

// Alabama House Committee Approves Medical Marijuana Legalization Bill Already Passed The Senate (Marijuana Moment)

These headlines are brought to you by Atlantic Farms, a Maine-based multistate cannabis business with operations in Maine and Massachusetts. Atlantic Farms is looking for people to help it grow and evolve as investors. Open up for more on the company and email to learn about investment opportunities.

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// Green Thumb poised to build out $50 million cannabis facility in New York (Marijuana Business Daily)

// Denver discusses permanently allowing drive-thru walk-up dispensary sales (Denver Channel 7 ABC)

// States Keep Repeating the Same Mistake With Marijuana Legalization (Slate)

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Smarter Delivery with Zolt’s Plant-Powered CBD Drink Mixes

How can we feel more balanced and grounded? How can we be our best selves more of the time?

These are the questions CEO Doug Siegel wanted to answer when he founded Zolt, a CBD wellness company bringing harmony to consumers through “plant-powered super drinks.”  

Having worked in the beverage industry for 17 years, Siegel understood the importance of flavor and aroma. He wanted to combine this knowledge with emerging food technologies to give people a product that was properly dosed, tasted good, and actually worked. 

So, he teamed up with experts in emulsification, atomization, agglomeration, and other fields relating to hemp’s bioavailability. And after an immense amount of research and development, they arrived at a solution for a tasty, convenient and effective ingestible hemp format: Zolt

“Zolt is designed to help people stay calm, focused, engaged, and positive,” Siegel told Cannabis Now. “With all that is going on in today’s world, a little goodness and help for our body is important.”

Zolt’s hemp drink mixes are commonly referred to as “mixie sticks.” Simply mix the packet’s contents with water, or your favorite tea or smoothie (each blend includes suggestions for the best combo!) The mixie sticks are formulated with organic adaptogens and antioxidants for use throughout the day, and a blend of 20mg of water-soluble CBD isolate or full-spectrum hemp is combined with different flavors to either invigorate, energize, or relax you. 

The Zolt product line has something for every moment – there’s Rise and Rise+, designed to prepare you for your day,  Dial-Up+ for an afternoon boost, and the Dreamy Honey Citrus Tea bedtime formulation, designed to soothe your mind and repair your body as you sink into sleep. Zolt’s caffeinated Boost+ mix helps promote immunity, while Balance is perfect for maintaining harmony every day. 

Each mixie stick is packed with delicious flavor and contains adaptogens and antioxidants sourced from premium ingredients to supercharge each beverage’s wellness potential.

Quest for Convenience and Accessibility Leads to ‘A-ha’ Moment

Siegel’s motivation to create Zolt stemmed from his own personal wellness journey. After trying a variety of CBD edibles and tinctures, he realized he was more relaxed, focused and capable of doing so much more. The small stuff didn’t interfere with his every day anymore. 

“It was amazing to realize the effects of CBD and be more balanced throughout the day,” he said. 

Siegel began immersing himself in the world of hemp. He researched and evaluated the effectiveness of different hemp formats, and how combining hemp with other super-plants can be monumental in helping people bring balance and wellness into their lives. 

He knew the demand to integrate CBD into wellness regimens was growing but acknowledged that its most common formats were full of friction, whether smoking, vaping or using a tincture. 

There simply had to be a better way.

“We realized that we needed to design a systematized approach to building plant-powered performance products that people can easily incorporate hemp into their daily routine,” Siegel explained. 

Previous experience in the beverages space inspired Siegel to develop a line of high-quality and delicious ready-to-mix concoctions that were simple to use but incredibly beneficial. Intensive research and development led him and his team to water-soluble CBD, opting for both full-spectrum and isolate depending on the mixie blend.

Add Water To Zolt Hemp Mixie Sticks

“Ultimately, we created a totally new, far smarter, wildly effective portfolio of plant-powered super-drinks derived from and inspired by hemp.”

Sustainability: Another Important Focus for Zolt 

For Siegel and the rest of the team, helping people live healthier lives isn’t the only goal. Our planet’s well-being is also at the forefront.

This is evident in the company’s decision to use a water-soluble powder in their products. Removing water weight cuts down on the need for plastic containers and reduces freight, lowering the company’s carbon footprint. Consumers are encouraged to pour their Zolt mixes into reusable water bottles to curb further waste. According to Siegel, the company is also exploring more environmentally friendly and recyclable packaging options for the future. 

In addition, Zolt donates one percent of proceeds annually to the National Young Farmers Coalition. This nonprofit and advocacy group is focused on helping the next generation of agriculture professionals adopt sustainable and equitable practices that will ensure their own success, as well as the environment as a whole.

“It’s everyone’s job to participate in social responsibility,” said an impassioned Siegel. “Businesses who recognize this can transcend these messages to their employees and customers, who themselves are consumers, neighbors, and friends – it starts the conversation and betters our communities.”

Innovation and Compassion Are the Future 

Despite its already robust catalog, Zolt is adding even more options to their product line, in an effort to benefit as many lives as possible. 

A terpene-derived mix that’s hemp-free is on deck. This line will focus on the potential powers of the molecules responsible for hemp’s unique aroma, flavor and entourage effects. 

One of these terpene-derived products is Peak, in Clementine flavor, which features sativa-dominant terps meant to invigorate and encourage focus. Zolt’s hybrid terpene blend, called “Even,” features vegan collagen, which is a lime mint flavor, and is designed to promote balance and hydration. Last but not least in this line, is the indica-inspired Dreamy Ginger Honey Tea (also containing vegan collagen and melatonin), which will help send consumers into a peaceful slumber. All three varieties also include prebiotics to support gut health for a holistic wellness approach.

While new product innovations are exciting for the folks at Zolt, it all goes back to their passion in making the world a better place — one mixie stick at a time.

“We strive to do what’s right, no matter what. We live up to a standard, always.” Siegel said. “Our goal is to help people understand the benefits of hemp and other plants so they can live their day to the fullest, every single day.”  

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Anthony Néron’s Hemp Revolution

Most teenagers haven’t decided what they want to do with their lives. And if they have, it’s likely that their aspirations will morph and change as doors open and close, as youthful idealism makes way for pragmatic considerations.

But as a teenager, Anthony Néron already had a plan: “I knew very early on that hemp was an answer for environmental, social and economic crisis,” he says. “It truly was my intention to bring my contribution to make this world a better place.”

And so, Néron started a hemp clothing line at 18 years old, learning the clothing design trade and honing his sewing skills. For two years, he toiled at the sewing machine, crafting hemp clothes that he hoped could bring a revolution of sorts, until his big dreams crumbled under more practical realizations.

“Clothing from China was way too cheap for me to [compete with],” he explains. “I couldn’t make a living out of it.”

Anthony Néron feels the wall to properly place billions of grains of sand, carve the corners and polish the entire surface with a river pebble until the wall becomes a solid and impervious stone.

But as fate would have it, a new door was opening for him: Néron received an invitation to visit the first hempcrete house in Quebec. He became a helper on the site and developed relationships with the craftsmen. He followed them along to other job sites and apprenticed for four years.

It was a natural fit. His mother was a designer and would often bring him along on projects, giving him small jobs on construction sites. And after learning the ins and outs of hempcrete construction, he was ready to strike out on his own with his vision: Art Du Chanvre.

After working on many hempcrete job sites, Néron saw a need for a different kind of look. Most houses he worked on were out in rural areas and had a rustic vibe. “It was not for everyone,” he said. With his Quebec-Canada based Art Du Chanvre (which translates to Art of Hemp), Néron combines hemp and lime construction with a more refined and minimalist aesthetic.

“My goal was to make something very universal,” he said. “It was my intention to bring hempcrete into contemporary design. I never gave up on my dream on making hemp a solution for everyone.”

Art Du Chanvre believes choosing to build with healthy ingredients and surrounding yourself with materials that respect the environment is a way of caring for the future.

It’s clear that Néron is focused on the plant’s revolutionary properties, and for good reason. Hempcrete offers a wide variety of benefits compared to traditional building materials. It’s fire- and vermin-resistant. It keeps interiors cool in the summer and warm in the winter. It’s simultaneously airtight yet breathable, making it virtually immune to mold and other humidity-related problems. So why aren’t all homes built with hempcrete?

Right now, it costs about 10 percent more to build a house out of hempcrete compared to traditional materials. However, that cost is expected to drop as more people adopt the material, and more people likely will switch to hempcrete with the realization they can save money in the long run on energy costs while getting a structure that will last centuries.

“People are kind of afraid of change,” says Néron. But he hopes that his clean and modern constructions will help bring hemp to a broader audience. With Art Du Chanvre, Néron prefers to focus on beautiful lines and textures, while using whites and grays to create a canvas for eccentric furniture, colorful décor and elegant art.

Natural materials — lime, hemp and clay — are loaded into a van.

There’s also the issue of education – many are simply unaware of the material. Néron says a significant part of his job is teaching others about hempcrete, so he travels frequently to speak at various conferences.

“Construction can literally lead a revolution,” says Néron. “If we’re using hemp and making buildings, we’re not just stopping pollution – we’re also cleaning the earth.” Hemp captures carbon at it grows, while releasing oxygen, and can also help remove heavy metals and toxins from soil. Meanwhile, traditional construction materials that hemp oil can replace are petroleum byproducts such as floor wax, caulking material and house paint.

“You have the petroleum industry in the construction industry and they have too much power,” says Néron – citing yet another challenge he runs up against in his hemp revolution.

Anthony Néron holds a tool used to work with hempcrete – a medium that can keep interiors warm in winter months and also cool during hotter seasons.

The good news is that hempcrete is catching on. Néron says he is seeing more and more interest, especially in the United States. “The most receptive and open-minded people are the Americans,” he says. “I have more and more calls from the U.S.”

And while hemp and psychoactive marijuana are two very different plants, the liberalization of cannabis laws are propelling both forward. “[Legalization] opens a lot of doors. People are going to stop considering cannabis and hemp as a drug,” says Néron. “It really is a good thing and we have beautiful years ahead of us.”

Originally published in print edition of Cannabis Now. LEARN MORE

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What are hemp buds, and where can you have them?

For more than 80 years, the hemp plant was prohibited and conflated with its THC-rich cousin. Though they are both from the Cannabaceae family, hemp and marijuana were historically used for very different things. Industrial hemp is non-intoxicating, has a long history with humans and has been used for millennia for textiles, paper, food and much more. Cannabis also has a long relationship with humans and is used for less hands-on applications such as medicine, ritual, and enjoyment.  

It wasn’t until 2018 that hemp and marijuana became legally distinct in the US with the passage of the 2018 Farm Bill, finally defining hemp as separate from marijuana and allowing for its cultivation and distribution. 

Judging by the size of the US cannabidiol (CBD) market and the rapid ascent of cannabis concentrates, consumers are showing an eagerness to try new industry offerings. Now that hemp is legal, that includes smokable CBD bud or “hemp bud” — also called hemp flower or CBD flower. 

What’s the difference between cannabis-derived CBD and hemp? Do hemp buds have CBD?

If getting high is what you’re looking for, you won’t find it with hemp flower. Hemp plants are bred for industrial purposes and to contain very little intoxicating THC. And if a medicinal level of CBD is what you’re after, hemp buds are not usually CBD-rich and not a very efficient way to get the cannabinoid. 

However, CBD derived from high-THC cannabis is much more likely to have higher levels of CBD and terpenes, the aromatic compounds responsible for cannabis’s distinct scent and flavor profiles. Cannabis-derived CBD offers much more medicinal benefit than hemp-derived CBD and shouldn’t get you high, provided it remains below the federally legal limit of 0.3% THC. 

One of the purposes of the Farm Bill was to differentiate non-intoxicating industrial hemp from THC-laden marijuana, and that demarcation has landed at 0.3%THC. Anything above that is considered marijuana and remains federally illegal.

That’s the line that “hemp buds,” aka CBD flowers, are walking. 

Gina Coleman/Weedmaps

The growing demand for hemp and CBD products 

Smokable hemp buds have been somewhat controversial with states and law enforcement because of their similar smell and appearance to THC products, and currently there is no technology available for law enforcement to discern whether a product is legal without sending it off to a lab for testing. 

But that hasn’t stopped a burgeoning smokable hemp flower market. Market researchers at Nielsen found that the smokable hemp market — including categories such as CBD flower, hemp-CBD prerolls and other inhalables — reached $70 million to 80 million in sales in 2020. Separately, smokable-hemp CBD flower and CBD pre-rolls were valued between $35 million and $40 million. The Nielsen report expects the market size to dramatically increase, anticipating a smokable hemp market valued between $300 million and 400 million by 2025. 

CBD is an ongoing consumer trend, because of its anti-inflammatory and ameliorative properties, that has found its way into such products as intimate lubricants, tinctures, shampoos and — more recently — smokable hemp CBD buds. And this market surge shows no signs of abating. Cannabis research firm Grand View Research reported that the global CBD market was valued at USD $4.6 billion in 2018 and is expected to reach $9.69 billion by 2025.

Are hemp buds legal? Navigating hemp’s legal landscape. 

This growth, however, does not reflect how the CBD industry somehow manages to flourish in the current landscape of patchwork cannabis legality. For example, in New York, it is legal to possess CBD as long as it is not smokable, while in Idaho, CBD is completely illegal in any form. Several states have already moved to either severely restrict or outright ban smokable hemp, including Texas, Kentucky, Louisiana, Indiana, and Iowa. 

Federally legal hemp does not automatically confer state legality. In fact, the Farm Bill essentially left discretion to the states, leaving them to decide whether CBD is legal within their borders, creating confusion for consumers and farmers alike. 

On its own, CBD was not made explicitly legal by the Farm Bill, creating an oversight vacuum that leaves consumers with few guidelines about which CBD hemp buds — or any CBD, for that matter — is safe to consume. As it stands, there is no federal oversight about packaging, labeling, and retail sales for hemp buds, leaving it to individual cannabis firms to follow their own state guidelines. 

It’s also clear that policymakers are far behind market and consumer demand, though there have been some moves. The Hemp and Hemp-Derived CBD Consumer Protection and Market Stabilization Act was introduced in Congress. If passed, it would allow hemp and hemp-derived CBD to be marketed and sold as dietary supplements, but it doesn’t address smokable CBD and hemp. 

Are hemp buds for you?

Hemp buds are becoming easier to find and are often found in smoke shops and CBD stores — even in states where cannabis is not legal. However, it’s a buyer beware market. Just like with CBD, it is important to know what you’re getting. Because there is not yet any government regulation on this segment of the market, companies are under no obligation to create a product that is safe to consume or tested for toxicants and contaminants. Make sure to purchase from licensed dispensaries where you can talk to a customer service representative, see cannabinoid profiles, and easily find lab results. 

Featured image by Gina Coleman/Weedmaps

The post What are hemp buds, and where can you have them? appeared first on Weedmaps News.

Wednesday March 17, 2021 Headlines | Marijuana Today Daily News

Marijuana Today Daily Headlines
Tuesday, March 16, 2021 | Curated by host Shea Gunther

// Connecticut House Speaker Says ‘Optimism Abounds’ As Marijuana Legalization Negotiations Proceed (Marijuana Moment)

// Legalizing Marijuana Has Been A ‘Uniformly Positive’ Move In Washington State Governor Says (Marijuana Moment)

// Oregon Governor Appoints Panel To Implement Historic Legal Psilocybin Therapy Measure (Marijuana Moment)

These headlines are brought to you by Agilent, a Fortune 500 company known for providing top-notch testing solutions to cannabis and hemp testing labs worldwide. Are you considering testing your cannabis in-house for potency? Agilent is giving away a FREE 1260 HPLC system for one year! If you are a Cultivator, processor, or cannabis testing lab you may qualify for this giveaway. Open up to answer a few quick questions to enter to win!

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Check out our other projects:Marijuana Today— Our flagship title, a weekly podcast examining the world of marijuana business and activism with some of the smartest people in the industry and movement. • Marijuana Media Connect— A service that connects industry insiders in the legal marijuana industry with journalists, bloggers, and writers in need of expert sources for their stories.

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D8 THC is made from illegal hemp waste boiled in acid— here’s why

D8 THC has made a buzz around the cannabis market recently. A noteworthy anomaly of D8-THC is its legal status in the US. Ever since the Farm Bill permitted legal hemp-derived CBD next to illegally cultivated D9-THC, processors began using fifty-year-old chemistry and technology. Due to a loophole in the Bill, massive quantities of legal […]

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A Quick Guide to Cannabis Patents: What You Need to Know

Amid the quick expansion of the legal cannabis market, many cannabis growers and business owners are pushing to secure intellectual property rights for the strains and products they’ve created.

Cannabis patents currently exist in a still-clouded regulatory atmosphere thanks to federal prohibition, but it’s still possible to receive one — and the cannabis industry is certainly rising to the challenge to secure their own rights to continue cultivating strains that have long been part of the genetic and intellectual commons.

In the midst of this push for protecting cannabis intellectual property, there has been a rash of court cases and developments that have changed the foundation of cannabis patents in America. So what does it mean for the average cannabis consumer, who perhaps has heard to be wary of the day a patent-wielding Monsanto enters the cannabis industry?

Here is a basic guide to what you need to know about cannabis patents.

What Is a Cannabis Patent?

In the United States, there are three kinds of patents: utility patents, for a process or application of particular products; design patents, generally for industrial products; and plant patents, for new varieties of plants.

Each of these types of patents could apply to cannabis products. For example, in 2017, a Nevada-based firm with the slightly presumptuous name Cannabis Sativa Inc did win a plant patent for a strain called Ecuadorian Sativa. The firm boasted of its high content of the terpene limonene, and its possible curative capacities for various ailments — not of THC. The company was later able to procure a utility patent for a cannabis lozenge.

This one of the few cannabis patents that have been granted in the U.S. According to Forbes, the U.S. Patent Office has been issuing cannabis patents since 1942, despite the fact that the plant is a Schedule I drug. Over the years, about 1,500 cannabis patents have been filed, and there were about 500 active cannabis patents, as of 2017.

One bizarre contradiction of federal policy is illustrated by the fact that in 2003, the U.S. Department of Health and Human Services itself secured a patent — number 6630507 — for the use of cannabinoids (not including THC) as antioxidants and neuroprotectants. Yet just three years later, an FDA memorandum reiterated the official position that cannabis has “no medical value.”

Why Are People Particularly Scared of Utility Patents?

A utility patent protects the way that something is used and how it works. Consider the utility patent for a cannabis lozenge: it’s a patent on the idea that cannabis can be consumed in lozenge form to address a specific problem.

That makes utility patents particularly broad, and therefore could be used to step on more cannabis companies’ toes.

For example, “you can’t say you’ve done all the work necessary to establish use of cannabis for headaches,” Jerry Whiting of Seattle-based LeBlanc CNE, which develops and markets CBD products, told Cannabis Now. “That’s not worthy of government protection. These patents are unenforceable in most cases, but nobody can afford the lawyers to go after them.”

What About the Process for Getting a Cannabis Trademark?

It’s confusing: Getting a cannabis patent with the federal government is possible, but a cannabis trademark is not. A trademark is a form of intellectual property protection over a name, word, logo, symbol or design associated with a product or company.

Currently, there is no process for trademarking a product that contains significant quantities of THC, and the federal government is only now moving to establish such a process for CBD products.

In a case that exemplifies the persisting dilemmas, a federal court in California ruled last month that cannabis edibles cannot be trademarked due to federal prohibition.

As Food & Beverage Litigation Update reports, the San Francisco-based court for California’s Northern District rejected a trademark infringement claim in Kiva Health Brands LLC v. Kiva Brands Inc. In the litigation, Kiva Brands Inc (KBI) and Kiva Health Brands (KHB) disputed rights to the “Kiva” trademark. KBI asserted that they owned the name, given that they had been selling cannabis-infused edibles under the name in California since 2010. But the court said no dice.

In 2010, the federal government did entertain the idea of allowing trademarks for medical marijuana products. Hopes had been raised by the government’s creation in April 2010 of a new trademark category: “Processed plant matter for medicinal purposes, namely medical marijuana.”

Applications for trademarks were quickly filed. 

“It looked like a positive step to me. We don’t have many steps by the federal government legitimizing medical cannabis,” Steve DeAngelo, executive director of Oakland’s flagship dispensary, Harborside, told the Wall Street Journal. But that July, the USTPO did an about-face and nixed the plans.

What About Hemp Patents?

In September, the U.S. Patent and Trademark Office awarded “what appears to be the first patent for a hemp strain” to Denver-based Charlotte’s Web Holdings. Charlotte’s Web obtained U.S. Plant Patent No. PP30,639, listing CEO Joel Stanley as an inventor of the “new and distinct hemp cultivar designated as ‘CW2A.’”

The federal bureaucracy is starting to catch up with the law following passage of the 2018 Farm Bill. The USPTO issued guidelines for trademarks on CBD products, while the U.S. Agriculture Department (USDA) is preparing to recognize intellectual property in hemp varieties. 

At the international level, hemp strains are already being registered with the Geneva-based International Union for the Protection of New Varieties of Plants (UPOV).

Why Are Cannabis Patents So Controversial?

Starting with the failed California legalization bid Proposition 19 in 2010, we’ve seen the strange phenomenon of “Stoners Against Legalization” — cannabis users and growers who viewed the initiative (and the successful Proposition 64 six years later) would allow big corporations to corner the cannabis market and squeeze out independent growers via access to finances and patents. 

These fears were fueled by rumors in 2010 that the Drug Enforcement Administration was granting big corporations licenses to grow cannabis for research. The concern was that these companies could develop novel applications for cannabis, receive a broad patent, and then go after smaller cannabis growers for infringing on their patent, wielding the patent like a legal bludgeon. This is a strategy made famous by Monsanto, which uses its corn and soy patents to push out small farmers growing those crops.

Why Is “Prior Art” So Important?

The federal government will only grant a patent to someone if it believes the product or idea in question is a “novel invention,” and that means no one has come up with it before.

“Prior art” is anything that proves a patent was not a novel idea. For example, if Person A gets a plant patent for a cannabis strain they claimed was unique, but Person B can prove they grew that strain in 2014, the patent could be held invalid.

Breeders and growers are still wrestling with how to assert their traditional rights in the increasingly corporate-dominated cannabis environment, and especially because many illicit market growers were understandably avoiding keeping a paper trail. In the cannabis space, many people have advocated for using strain databases to build potential “prior art” defenses.

What Do “Open Source” Cannabis Projects Mean for Cannabis Intellectual Property?

For those people who don’t want to claim ownership over cannabis — and want to keep cannabis open to the public, open source projects have been useful.

For example, the Oregon non-profit Open Cannabis Project sought for years to protect the cannabis genome from corporate privatization by gathering cannabis data to keep in the public domain. (However, Open Cannabis Project has been suspended due to funding challenges following a controversy concerning the supposed proprietary ambitions of its for-profit partner, Portland-based Phylos Bioscience. Phylos encouraged cannabis growers to use its strain genotyping services and database to establish prior art.)

“Nobody has the right to patent the Garden of Eden,” says Whiting. “No one owns nature. The rest is just courtroom bullsh*t.”

Whiting has drawn up what he calls an “open-source alternative licensing schema” under the title “Cannabis Breeders Rights.” It lists different categories, such as “grow & harvest” only or “cloning allowed.” 

His proposed framework is also designed to protect the rights of small growers who do not have access to economies of scale.

Whiting’s “end-user license agreement” would establish the prior art of a particular cannabis strain.

“My wishes going forward are that these strains are never to be owned by anyone,” he says. “As long as it’s being used by seed-savers in backyards, it’s free.”  

This system is based on terms agreed to by vendor and purchaser, rather than patents.

Whiting’s alternative licensing proposal is partly inspired by “Berkeley Standard Distribution,” the norm adopted by computer engineers in the ’90s that established UNIX-based operating systems as open-source. “A lot of the software that runs the world today is not under commercial license,” he says.

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