Google Updates Policy To Allow Hemp, CBD Products with Certification

Google released an announcement this month that explains an update to its “Dangerous Products and Services and Healthcare and Medicines.” As of Jan. 20, 2023, cannabis advertising will be allowed, but currently only in California, Colorado, and Puerto Rico.

Specifically, this update pertains to U.S. Food and Drug Administration (FDA)-approved products that contain CBD, or topical, hemp-derived CBD products with 0.3% or less THC. “Certain formats, including YouTube Masthead, will not be eligible for serving. CBD will be removed from the Unapproved Pharmaceuticals and Supplements list. All ads promoting other CBD-based products, including supplements, food additives, and inhalants, continue to be disallowed,” Google states.

Google is partnering with LegitScript to create a certification program for non-ingestible CBD manufacturers. LegitScript CEO Scott Roth explained how the certification aims to create a standard for the cannabis industry. “When people see the LegitScript seal on your product or website, they know that you operate safely and transparently,” said Roth. “In an industry that is still seeing widespread problems with products that are tainted, substandard, or illegal, it’s more important than ever to give consumers confidence that the CBD products they’re purchasing have been properly vetted.”

LegitScript works with other payment service providers such as Visa, Google, Bing, and Facebook. “LegitScript Certification lets the world know which healthcare merchants, CBD products and websites, and drug and alcohol addiction treatment facilities operate safely and transparently,” the company states in a press release. “The result? Certified merchants can stand out from the crowd, grow their online presence, and demonstrate credibility in high-risk industries. LegitScript is the leading third-party certification expert in these tightly regulated and complex sectors.”

LegitScript will charge a fee for processing and monitoring applicants (although the company’s website says that fees are waived through March 31, 2023). Applicants may submit their websites for a LegitScript certification in order to advertise on Google. After LegitScript certifies a website, they will be given “information on demonstrating your certified status,” such as a LegitScript “Seal of Approval” that can be displayed on a certified website.

LegitScript’s starting fees per CBD product vary between $650 for one to five products, decreasing for brackets including $600 for six to 50 products, $550 for 51 to 99, and finally $500 for 100 or more. There is also an annual monitoring fee that ranges between $750 to $1,000 depending on the number of CBD products as well. Full websites require an $800 fee per website, with either a $1,600 annual fee per website, or $2,250 annually for a “probationary website” for websites with “a past history of significant compliance issues.”

This move is a step in the right direction for hemp products, although there is currently no mention of expanding this new update to other states yet.

In the past, there have been some negative interactions between Google and cannabis-related content. In 2016, one Minnesota-based medical cannabis company fought against Google for banning it from advertising online due to having “dangerous products or services.” That same year, Google saw a 75% increase in cannabis searches online, and allowed games about the War on Drugs to be promoted on Google Play. 

In 2017, Google Docs temporarily labeled documents, including those relating to cannabis, as inappropriate (although the event was considered to be due to a coding error and was promptly fixed).

In July 2019, Google announced that cannabis products would be banned from the app store, and during the height of the vaping epidemic later that year, Apple also removed all vaping-related apps from the iOS store.

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Connecticut Governor Selects Chairman of Social Equity Council

Connecticut’s adult-use law was packed with provisions to ensure an equitable industry, and now the state’s Social Equity Council has a new chairman.

Connecticut Governor Ned Lamont announced on Dec. 27 that he selected Paul O. Robertson, deputy commissioner of the Connecticut Department of Economic and Community Development (DECD), to serve as Chair of the state’s Social Equity Council.

The Social Equity Council seeks to ensure that Connecticut’s adult-use cannabis program is fairly represented, and ensure that funds from the adult-use cannabis program go to the right communities that are disproportionately hit hardest by the War on Drugs, according to the council’s Code of Ethics. Robertson’s new role begins when the seat becomes vacant at the beginning of next year.

“Connecticut’s adult-use cannabis program is at a pivotal time right now, and I appreciate the steps the Social Equity Council has taken to date to ensure that it is rolled out in an equitable manner as we envisioned when we enacted this law,” Governor Lamont said. “Paul will bring relevant experience and strong existing relationships with council members to his role as chair, and I thank him for agreeing to take on this leadership position.”

Deputy Commissioner Robertson succeeds Andréa Comer, deputy commissioner of the Connecticut Department of Consumer Protection (DCP), as chair of the Social Equity Council. 

Deputy Commissioner Comer plans to depart her job at DCP and her membership on the council to take upon a new role as chief of staff for Treasurer-elect Erick Russell. That new role will be filled when he takes the oath of office on January 4, 2023. Per state statutes, the governor must select one of the council’s members to serve as its new chair.

“I am grateful to Governor Lamont for entrusting me with this important role and I look forward to serving the state in this new capacity,” Deputy Commissioner Robertson said. “Deputy Commissioner Comer has done a tremendous job leading the Social Equity Council to this point, and I plan to continue to work alongside its members and our partner agencies to ensure the adult-use cannabis market grows equitably.”

The Purpose of the Social Equity Council

The enforcement of cannabis laws disproportionately targeted certain communities, and cannabis minority ownership remains low, leading many states to adopt social equity provisions to make an effort to fix some lingering issues. 

In Connecticut, the state’s census tracts identify Disproportionately Impacted Areas to promote and encourage the full participation in the cannabis industry by people from communities disproportionately harmed by cannabis prohibition. The recommended tracts are available to see on the Connecticut Open Data Portal.

To qualify as a Disproportionately Impacted Area, those communities must have either a historical conviction rate for drug-related offenses over one-tenth, or an unemployment rate over 10%, as determined annually by the Social Equity Council.

The council provides credentials for all of its council members. The council, under Connecticut’s adult-use cannabis law, Public Act 21-1, consists of 15 members—seven of whom are appointed by legislators, four of whom are appointed by the governor, and four of whom are ex-officio members.

Other efforts are being made to right the wrongs of yesterday, such as the expungement of thousands of records involving cannabis-related convictions. Earlier in the month, Gov. Ned Lamont’s office said in a press release that records “in approximately 44,000 cases will be fully or partially erased” next month by way of “an automated erasure method.”

Connecticut’s adult-use law contained provisions to award the first retail licenses to individuals from areas most adversely affected by long standing drug policies, and to clear the records of those with certain cannabis-related convictions.

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California Gov. Gavin Newsom Pardons 10, Some Cannabis Convictions

California Gov. Gavin Newsom announced 10 pardons on December 23, including at least two stemming from cannabis-related charges. Some of the charges are decades old, and one charge dates back to 1973. The list of pardons includes some of the ways people have changed their lives since the times of their convictions.

The governor recognized some of the systems in place that are “counterproductive” to public safety when you look at the big picture. Convictions can haunt a person’s life, leading to deportation, permanent family separation, or other consequences.

“The California Constitution gives the Governor the authority to grant pardons,” Gov. Newsom’s announcement reads. “The Governor regards clemency as an important part of the criminal justice system that can incentivize accountability and rehabilitation and increase public safety by removing counterproductive barriers to successful reentry. A pardon may also remove unjust collateral consequences of conviction, such as deportation and permanent family separation.

Pardons do not forgive or minimize the harm caused by crime. Instead, these pardons recognize the pardon grantees’ self-development and rehabilitation since then.”

In the announcement, the governor noted how victims of crimes were heavily considered in making these decisions. “The Governor’s Office encourages victims, survivors and witnesses to register with CDCR’s Office of Victim and Survivor Rights and Services to receive information about an incarcerated person’s status. The office also posted more general information about victim services.

The pardons include information on ways people have made changes. Some people on the list even went into substance abuse or other types of counseling. Below are the ten people who received pardons from the governor:

• John Berger, sentenced in 1995 for transporting a controlled substance. Berger now works to support others with their sobriety.
• Lucas Beltran Dominguez, sentenced in 2008 for transporting or selling cannabis and possession of cannabis for sale. Dominguez is now a father of seven and is an active member of his church.
• Michael Farrier, sentenced in 1990 for first degree burglary and second degree robbery.
• Kimberly Gregorio, sentenced in 1988 for possession of a controlled substance for sale and obstructing an officer.
• James King, III, sentenced in 1988 for the sale of cocaine. 
• Santiago Lopez, sentenced in 2000 for possession of cannabis for sale, in 2004 for possession of cannabis for sale, and in 2001 for possession of a controlled substance for sale and possession of cannabis for sale. Lopez is now a facility manager of his church and a peer counselor.
• Kenneth Lyerly, sentenced in 2004 for possession of a controlled substance for sale.
• Jimmy Platon, sentenced in 1973 for trespassing and in 1978 for possession of a controlled substance for sale.
• Julie Ruehle, sentenced in 1999 for two cases, one for possession of a controlled substance and the other for taking a vehicle without consent.
• Kathy Uetz, sentenced in 1991 for possession of a controlled substance and in 1997 for possession of a controlled substance for sale. Uetz volunteered over 5,000 hours with a community emergency response team.

To date, Gov. Newsom has granted a total of 140 pardons, 123 commutations, and 35 reprieves while in office.

Similar efforts are being made by the governor’s office. Gov. Newsom also signed a bill into law in September 2022 that will create the option for an alternate plea to individuals facing certain drug convictions. The “Alternate Plea Act” enables prosecutors to offer some defendants who have been charged with drug-related offenses a public nuisance plea. Under the law, prosecutors will be able to offer the public nuisance plea at their discretion.

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Cannabis Researchers Published 4,300 Scientific Papers in 2022

NORML recently announced that according to a PubMed.gov keyword search, there were more than 4,300 scientific research papers published about cannabis in 2022. In 2021, there were an estimated 4,200 papers published; over the last 12 years, more than 30,000 research papers have now been published; and in total, there are approximately 42,500 scientific papers exploring cannabis.

While it’s common to hear opponents of cannabis state that more research is necessary before legalization can occur, NORML Deputy Director Paul Armentano released a statement to counter that argument. “Despite claims by some that marijuana has yet to be subject to adequate scientific scrutiny, scientists’ interest in studying cannabis has increased exponentially in recent years, as has our understanding of the plant, its active constituents, their mechanisms of action, and their effects on both the user and upon society,” Armentano said. “It is time for politicians and others to stop assessing cannabis through the lens of ‘what we don’t know’ and instead start engaging in evidence-based discussions about marijuana and marijuana reform policies that are indicative of all that we do know.”

NORML compiled numerous scientific studies involving cannabis between 2000-2021, exploring findings from studies on a wide variety of medical conditions such as chronic pain, Huntington Disease, insomnia, Multiple Sclerosis, post-traumatic stress disorder, and so much more. The review analyzes the evolution of researcher’s scope of cannabis. “As clinical research into the therapeutic value of cannabinoids has proliferated so too has investigators’ understanding of cannabis’ remarkable capacity to combat disease,” NORML wrote. “Whereas researchers in the 1970s, ’80s, and ’90s primarily assessed marijuana’s ability to temporarily alleviate various disease symptoms—such as the nausea associated with cancer chemotherapy—scientists today are exploring the potential role of cannabinoids to modulate disease.”

Even recently, the scientific community has released many intriguing cannabis studies in recent months. One recent study published in the Journal of Sleep Research found that cannabis was an effective treatment for insomnia, with researchers stating that participants experienced an 80% increase in sleep quality, and 60% were no longer classified as clinical insomnias following the end of the two-week study. Another study found evidence that cannabis has “uniquely beneficial effects” on those with bipolar disorder, while one found a link between cannabis consumption and physical activity in HIV+ patients. And there are many more studies underway, such as King’s College London which recently launched a massive 6,000-person study in September, with a goal of publishing early results in 2023 or 2024.

Cannabis is more mainstream than it has ever been before. President Joe Biden’s recent monumental signing of the Medical Marijuana and Cannabidiol Research Expansion Act which “establishes a new registration process for conducting research on marijuana and for manufacturing marijuana products for research purposes and drug development.” Biden also signed an infrastructure bill in 2021, which contained provisions for cannabis. It states that in two years, the Attorney General and Secretary of Health and Human Services must submit a report that addresses how researchers can receive increased samples of various strains, establishing a “national clearinghouse” that will help researchers better distribute cannabis products for research, and an increased amount of samples for researchers who don’t live in states with medical or adult-use cannabis legalization. 

On the side, studies exploring the benefits of other psychedelic substances are also rising. One study in the journal Psychopharmacology found evidence that psilocybin can treat those with autism spectrum disorder. The University College of London released the results of a recent study as well, which analyzed brain imaging of consumers who attended psychedelic retreats. Another from the University of Melbourne explored how ayahuasca benefits outweigh the risks.

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Washington, D.C. Passes Bill To Expand Medical Weed Sales

Local lawmakers in Washington, D.C. last week passed legislation to expand medical marijuana sales, giving the city’s popular but unlicensed weed gifting shops a path to the regulated market. The bill, which was approved by the D.C. district council on December 20, comes after Congress included an existing prohibition on regulated adult-use cannabis sales in the nation’s capital as part of a spending bill approved last week.

The bill significantly expands Washington, D.C.’s medical marijuana program, lifting a cap on dispensaries and increasing the number of authorized cultivation facilities. The legislation also creates licenses for new types of cannabis businesses, including marijuana delivery services, online sales, educational programs such as cooking classes, and cannabis consumption areas at dispensaries. Half of the new licenses will be reserved for social equity applicants, which are defined as D.C. residents who have a low income, have spent time in prison, or are related to someone who was incarcerated for a cannabis or drug-related offense.

Bill Addresses D.C.’s Weed Gifting Shops

The legislation is designed to address the vast unregulated market for cannabis in Washington, D.C., where medical marijuana was legalized by local lawmakers in 2010. In 2014, voters approved Initiative 71, a ballot measure to legalize recreational marijuana. Under the measure, adults can possess up to two ounces of marijuana, are permitted to grow cannabis at home, and may gift up to one ounce of weed to another adult. However, Congress, which has control over the Washington, D.C. budget, has refused to allow the city to spend money on regulating recreational marijuana sales.

The situation has led to dozens of businesses that take advantage of the gifting provision of I-71 to distribute cannabis openly from storefront businesses. Under the common scheme, businesses sell benign merchandise such as apparel or art, offering what is ostensibly a free gift of marijuana with the purchase. Phil Mendelson, the Chairman of the Council of the District of Columbia, estimates the unregulated marijuana market in the nation’s capital is worth as much as $600 million per year. 

“There’s always going to be an advantage to unlicensed and unregulated: they don’t have to pay taxes, they don’t have to ensure quality,” Mendelson said in an interview with DCist/WAMU. “Congress is aiding and abetting that by prohibiting us from regulating that. It’s a real public safety problem,” he said.

Patients Can Self-Certify To Use Medical Marijuana

The legislation passed last week also makes permanent an emergency measure passed earlier this year that allows adults to certify their own eligibility to use medical marijuana, eliminating a previous provision that required certification by a licensed physician. At the time, Mendelson and some members also attempted to enact prohibitions on the gifting industry but faced opposition from a group of business owners. Legalizing the shops so they could be regulated was not possible under the congressional ban, making allowing gifting businesses a path to the medical marijuana market an option popular with a majority of the district council.

“It’s going to allow the District to be a lot healthier on the cannabis side,” Terrence White, chairman of a group known as the i-71 Committee and a gifting shop owner, told the Washington Post. “It’s going to allow us to be doing it ‘right,’ as I call it.”

The bill passed by the council last week gives existing operators 90 days to apply for a medical marijuana retailer license and prevents enforcement against gifting shops for at least 315 days after the legislation goes into effect. David Grosso, a former council member and current lobbyist for the D.C. Cannabis Trade Association, a group representing licensed medical marijuana operators, said that the bill is a positive development for the industry.

“We certainly would like to see a level playing field across the board, and that hasn’t been the case for as long as the [Initiative 71] folks have been operating illegally. And so we’re hopeful that this effort will bring them into the legal market and then treat them equally with us,” said Grosso. “And that means all the regulations that come with it, the fees that you have to pay, the inspections you have to endure, all of the restrictions around where you can locate, and everything like that which the current legal market has had to deal with now for more than ten years, which is a huge burden on us.”

Norbert Pickett, the owner of Cannabliss, one of the seven licensed medical dispensaries located in the nation’s capital, agreed, saying that the legislation is an opportunity to expand Washington, D.C.’s medical marijuana market and provide new options for patients.

“It gives patients more access to safe and tested cannabis,” he said. “It unifies unregulated market and the legal market. For me, that’s a win.”

Mackenzie Mann, project manager for the gifting industry trade group Generational Equity Movement, said that the legislation from the district council is a drastic change for Washington, D.C.’s cannabis landscape.

“It’s surreal,” Mann said. “A year ago, they were trying to shut us down.”

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USPTO’s Abuse of the “Lawful Use” Trademark Registration Standard

Lawful use in commerce is a requirement for a trademark to be registered in the United States. For cannabis brands, this means that the United States Patent and Trademark Office (USPTO) will not register trademarks used in connection with products that are illegal under federal law, most notably marijuana. However, USPTO’s problematic approach to lawful use when it comes to cannabis goods and services is leading to the denial of applications that describe perfectly legal products.

Arguably, USPTO should not be denying any trademark applications on the basis of noncompliance with any laws other than the Trademark Act (also known as the Lanham Act), which governs trademark registration at the federal level in the United States. Nonetheless, there is a certain logic behind the agency’s refusal to register trademarks that describe marijuana, which is a schedule I controlled substance. In general terms, a court will not enforce a contract that requires a party to commit a crime in its jurisdiction. To do so would make the court an enabler of illegal activity. By the same token, facilitating commerce in marijuana, by providing a party engaged in such commerce a particular legal protection, seems at odds with the Controlled Substances Act’s prohibition on marijuana.

Things get somewhat murky when we turn to USPTO’s refusal to register trademarks that describe certain hemp CBD products. While there are some black-and-white prohibitions under the Federal Food, Drug, and Cosmetic Act (FDCA), there is also a lot of gray. For instance, it may not be clear if a product is a “drug” under the FDCA. In fact, the same product could be subject to different treatment by the Food and Drug Administration (FDA) depending on how it is marketed. There may be a genuine question as to whether a product is lawful or not. These regulatory ambiguities are part of the landscape that cannabis brands must navigate and brands may need to pull off delicate balancing acts. Under those circumstances, it is improper for USPTO to create legal facts on the ground through its decisions on trademark applications, particularly given its lack of expertise on public health matters.

Where things get very troubling is when it comes to products whose legality no one questions, such as lighters and rolling papers, but which USPTO will scrutinize when cannabis brands apply for trademark registration. It is a fool’s errand to attempt to classify these items on the basis of their use, not least because multiple uses are a very real possibility. A lighter can be used by a consumer to light tobacco cigarettes, joints, candles, and ex lovers’ letters. Yet USPTO nonetheless insists on requiring trademark applicants to make such distinctions, by adding restrictive terms (such as “cigarette” to “rolling papers”) or issuing broad disclaimers that the goods in question will not be use with naughty products.

This is problematic on many levels, not least of which is the discriminatory treatment being meted out to cannabis brands. For just one illustration, the International Air Traffic Association acknowledges that airlines are used by human traffickers to advance their criminal objectives. Why then is USPTO not requiring that disclaimers be added to service descriptions such as “airline transportation services”, making it clear that trademark protection will not extend to such services when they are rendered to human traffickers and their victims? Because that would be silly, not least because adding such a disclaimer will not move the needle one bit when it comes to the urgent task of combatting human trafficking.

Leaving aside the grave issue of discriminatory treatment against cannabis businesses, USPTO is undermining its own function as administrator of the trademark registers by requiring these pointless disclaimers and restrictions. After all, goods and services descriptions should be, above all, accurate. It may make USPTO feel its doing its part in the war on drugs by requiring a brand that offers grinders to describe them as “tobacco grinders”. The thing is, though, most likely the products are not “tobacco grinders”. They are probably grinders that can be used to grind tobacco, hemp, legal smoking herbs, and, yes, marijuana.

It is one thing to refuse trademark protection in connection with illegal goods. However, is a very different, and rather absurd, thing to refuse trademark registration to products that may be used for illicit purposes. After all, pretty much any good or service that can described ion a trademark application can be used for illicit purposes. Sunglasses? A thief can use them to conceal his or her identity. Lawn care? Great front for money laundering.

Moreover, these restrictive descriptions may hinder a brand’s ability to extend its protective scope to perfectly legal products. By making brands describe a product as “tobacco” this or that, they are forced to exclude other possible, legal uses. As discussed before, it is not just a grinder that can be used with tobacco; it can also be used with hemp and other legal smokable products. Well, USPTO might counter, then you can just list out “hemp grinders” and “legal smoking herb grinders”. Yet a better approach is to just let brands describe their products as “grinders”, and if someone uses one of those grinders to grind marijuana, so be it.

As we have said many times before, USPTO has no problem with the idea that a product in connection to which a registered trademark is used may in some instances be used for illicit purposes. It seems that the only time there is a problem is when it is a cannabis brand that applies for trademark registration. Cannabis brands, by the way, that may not be selling anything considered a controlled substance under federal law. And even when the trademark registration that is being applied for is in connection to innocuous products such as lighters.

Ultimately, one cannot help but conclude that the discriminatory treatment being meted out to cannabis brands by USPTO amounts to a crusade against an entire industry. Presumably, the cannabis industry is so pernicious that it cannot even be allowed to earn money by selling lighters and rolling paper. We call on USPTO to end this abuse of the lawful use requirement.

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28 grams of game: Budega NYC’s Alex Norman

Alex Norman followed his instincts, and the lyrics of New York rap greats, to success in various fields. His legacy-to-legal cannabis journey now lives on for those hoping to take a similar path.

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