The BBC’s ‘Good Food’ publication reported earlier this year that Cannabidiol (CBD) is becoming increasingly popular in the health world. It is sourced from the cannabis plant but derived from the non-intoxicating hemp plant, and some believe it may have potential health and wellness benefits. The BBC’s ‘Good Food’ publication reports that some supporters of CBD oil, which can by consumed as a food supplement, believe it may help refractory epilepsy, chronic pain, depression, anxiety and acne.
In January 2019, Cannabidiol or CBD was confirmed as a novel food product by the UK Food Standards Agency (‘FSA’). The FSA have a set of regulations for novel food products. The regulations apply to England, Wales and Northern Ireland. The rules specify that where the novel food product does not have a history of consumption before May 1997, the products should be evaluated and authorised before they are put on the market.
Despite the volume of CBD-containing novel food products on the market in England, Wales and Northern Ireland, none have been authorised for sale so far. Products which were on the market before the FSA-imposed deadline of 13 February 2020 may remain on sale, provided they have a valid novel food application for authorisation and have met certain criteria. Products that were not on sale before 13 February 2020, cannot legally be put on sale now until they receive authorisation. The first authorisations are currently expected to be granted in 2023. Applications currently pending the FSA’s consideration include CBD-containing beer, spirits, coffee, carbonated beverages and peanut butter.
So where does this leave brands hoping to secure trade mark protection for their CBD based food and drink products?
To date, the practice of the UK Trade Mark Registry has been to accept trade mark applications for food and drink products with the words ‘cannabidiol’, ‘cannabigerol’ or ‘CBD oil’ in the specification in classes 29, 30, 31, 32 and 33. However, brands seeking to expand their trade mark protection into other territories may face additional requirements.
In the US, trade mark applications covering products containing CBD derived from marijuana will be refused registration, since these goods are not legal under federal law (even though they are legal in certain States).
For products containing CBD derived from hemp, such applications may potentially be lawful depending on, among other things, the percentage of the tetrahydrocannabinol (THC) – the substance that produces the ‘high’ associated with CBD. Another factor is whether use in food and drink has been approved by the U.S. Food and Drug Administration.
In contrast, other territories, such as Thailand, will refuse trade mark applications covering signs containing a cannabis leaf, or any reference to CBD, on the ground that the mark is contrary to public order, morality or public policy.
It remains to be seen whether the UK Trade Mark Registry will adopt stricter examination practices for CBD-containing food and drink products going forward, and whether future trade mark applications may require authorisation of the product by the UK’s FSA as a prerequisite to acceptance. For those who already hold registered rights for CBD-based products, there will also be potential non-use concerns if a product without FSA authorisation has to be withdrawn from the market or awaits authorisation before launch.
This article first appeared in Issue 7 of Scran and sIPs, the definitive guide to IP for the food and drink industry in Scotland. For more expert insights, please visit our Scran & sIPs hub.