Cannabis can encompass a range of experiences. See how the dankly scented plant can be considered a stimulant, depressant, or hallucinogen.
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In this month's Discreetly Dank, we hear from a writer who loves to get high at work. Hear how they stay high at their 9 to 5 on Leafly.
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Officers in Maryland may stop and question an individual who smells of cannabis, a court ruled last week.
In a divided ruling, the state’s Court of Appeals said “the drug’s aroma provides police with ‘reasonable suspicion’ that the person may have 10 grams or more, thus permitting the officers to conduct a brief ‘investigatory’ stop,” the Daily Record reported.
But the ruling does not give law enforcement carte blanche in those circumstances. According to the outlet, those officers “must end the stop if they do not quickly obtain information that gives them probable cause to believe the person has at least 10 grams or has committed another criminal offense.”
And the Daily Record noted that, despite the ruling, “possession of less than 10 grams of the drug is not a crime in the state.”
The ruling stems from a case involving a 15-year-old who was found to have a handgun in his possession. Officers found the weapon on the juvenile’s waist after conducting a frisk that was prompted by the odor of cannabis.
Last year, the Maryland Court of Special Appeals––an intermediate appellate court––took up the case and ruled that the smell of weed does not justify a cop to conduct a search, citing the decriminalization of possessing 10 grams or less of cannabis in Maryland.
“Because possession of less than 10 grams of marijuana is no longer a crime, the suspicion required to support a stop for the crime of possession of marijuana, therefore, is that the person is in possession of more than 10 grams of marijuana,” Judge Kathryn Grill Graeff wrote in her opinion, as quoted by local news outlet WTOP. “And because the ‘odor of marijuana alone does not indicate the quantity, if any, of marijuana in someone’s possession,’ [citing a previous case], it cannot, by itself, provide reasonable suspicion that the person is in possession of a criminal amount of marijuana or otherwise involved in criminal activity.”
But last week’s ruling from the state’s Court of Appeals undoes that opinion.
In a 4-3 decision, the majority “public interest in investigating and prosecuting criminal offenses, balanced against an individual’s freedom of movement and reasonable expectation of privacy in their person, leads us to conclude that the odor of marijuana by itself justifies a brief investigatory detention,” according to the Daily Record.
“Given the important governmental interest in detecting, preventing, and prosecuting crime, the Fourth Amendment allows a brief seizure, based on reasonable suspicion, to attempt to determine if criminal activity is afoot,” Judge Jonathan Biran wrote in the majority opinion, as quoted by the Daily Record. “An officer who lacks probable cause to arrest is not required ‘to simply shrug his shoulders and allow a crime to occur or a criminal to escape.’”
Judge Michele D. Hotten, writing for the minority, said that the “smell of odor on a person, alone, makes it impossible for law enforcement to determine whether the person has engaged in a wholly innocent activity, a civil offense, or a crime.”
“While reasonable suspicion is a relatively low barrier, law enforcement may not rely on a hunch that a person may possess 10 grams of (marijuana) odor in a non-medicinal capacity to form a basis of reasonable suspicion,” Hotten wrote in the dissenting opinion, according to the Daily Record.
Another judge in the majority addressed the particulars of the stop involving the 15-year-old, saying that the “officer in this case was justified in stopping [the juvenile] because police were responding to a call that a males [sic] were smoking a controlled dangerous substance in the basement of an apartment complex, which would indicate an amount of marijuana of at least 10 grams,” according to the Daily Record.
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Local leaders in Linn County, Oregon are advancing a proposal that would ban psilocybin therapy centers authorized by a statewide ballot measure legalizing the therapeutic use of psychedelic mushrooms. Under a proposal adopted by the Linn County Board of Commissioners last week, a ballot measure banning psilocybin production, manufacturing, and therapy facilities will appear before voters in the November 2022 general election.
In 2020, Oregon voters approved Measure 109, Oregon Psilocybin Services Act, a bill that legalized the therapeutic use of psilocybin. State officials are currently drafting regulations to enact the legislation, which authorizes centers where trained facilitators dispense psilocybin for therapeutic purposes.
Under Measure 109, local jurisdictions such as counties, cities, and towns were given the authority to regulate psilocybin therapy centers or refer a decision on the issue to voters in the community. On June 21, the three-member board of commissioners voted to put a measure banning the psilocybin therapy centers in Linn County before voters in this year’s general election.
“My fear is of young people taking mushrooms and going out and doing things that may cost them their life,” Linn County Commissioner Roger Nyquist told the Albany Democrat-Herald.
“I just think it’s appropriate to refer this measure to the voters in Linn County and allow them to have a say in this, particularly because they did not vote to support this measure in the first place,” he added.
Commissioner Will Tucker said that he is concerned that first responders will not be able to reach the scene quickly enough if a patient receiving psilocybin therapy in the remote county in central Oregon has a medical emergency.
“I have people who are miles and miles from a service like a grocery store,” he told Filter.
Tucker noted that if passed, the ballot measure would only apply to the unincorporated areas of Linn County. The proposal would not affect the incorporated cities and towns in the county including the largest city, Albany, although local officials there are considering a similar ban on psilocybin therapy centers.
“I would love to see it done carefully and in controlled ways,” Tucker said. “My son suffers PTSD; an Iraq War sniper, he has 100 percent disability … If there’s a way his mental health can be affected by marijuana or other drugs including mushrooms, I’d be all for it.”
Evan Segura, president of the Portland Psychedelic Society, says that it does not appear that counties taking steps to ban psilocybin therapy is becoming a trend. But at least one county along the Idaho border, Malheur County, has proposed a ban. He noted that the jurisdiction is already the home to several cannabis dispensaries that draw customers from neighboring states that have not yet legalized cannabis.
“I think these counties are anticipating there will be a huge wave of interest from Idaho, Montana, Wyoming, jumping over the state border to access psilocybin services,” Segura said. “These conservative counties are just not interested in being guinea pigs for this program, and I’m sure there’s a lot of drug-war prohibitionist hysteria that’s causing fear for them.”
Statewide, Oregon voters approved Measure 109 in the 2020 general election with 56% of ballots cast in favor of the initiative and 44% against. But in rural Linn County, only 45% of the electorate voted in favor of psilocybin therapy centers while 55% opposed the ballot measure. Statewide, 21 of 36 Oregon voted against Measure 109, although the initiative’s success in more populous counties secured its passage.
Linn County Commissioner Sherrie Sprenger said she does not believe Measure 109 will achieve the stated goal of curbing the illicit market for psilocybin, an argument made for legalizing cannabis that she characterizes as “naive and ill-informed.”
“The situation many rural folks in Oregon find themselves in frequently is this idea that our voice wasn’t heard and our voice wasn’t taken into consideration,” Sprenger said. “Sometimes we feel like the metropolitan areas, i.e. Portland and Eugene, make decisions for the rest of us. Local voters need to have a say in their own community.”
Segura said that many of those opposed to psilocybin therapy centers are concerned that someone will get behind the wheel of an automobile immediately after an all-day session, particularly those who might not have the means to afford overnight accommodations. But he does not see a significant risk in the argument.
“I think that situation is extremely rare,” Segura said. “I think if people can afford the session, they can afford a hotel, if not just stay at a service center that provides lodging. I think there’s minimal risk of someone going to do psilocybin then getting in their car and driving away.”
“We don’t ever hear of stories of people eating mushrooms and then doing something dangerous,” Segura added. “We would hear more of it if it happened more often.”
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The UN has just issued a report about cannabis that will no doubt in the near future look as alarmist as it is dated. Namely, the UN Office on Drugs and Crime (UNODC) has issued its annual world drug report.
Here are the high level takeaways—which are hard to read with a straight face.
The most recent study to examine such issues, emanating from the National Institutes of Health (NIH) last year had to concede that they could not “establish that cannabis use caused the increased suicidality we observed in this study,” and that “these associations warrant further research.” The same study also noted that cannabis use by adults more than doubled in the United States between 2008 and 2019—precisely the years that normalization became a multi-state campaign politically.
It is also worth noting that one of the most recent studies about cannabis and PTSD, which includes episodes of depression leading to suicide, found that cannabis use dramatically decreased PTSD symptoms to the point that many patients no longer met the diagnostic criteria for the condition.
Veterans are perhaps the population most at risk for suicide, even in the best of times. According to most national estimates, there are 22 veteran suicides a day in the U.S. Deployed veterans serving in either Iraq or Afghanistan had a suicide risk 41% higher than the average population. Even more intriguingly, non-deployed veterans had a 61% greater risk of committing suicide than the average person.
It is also worth noting that economic and other conditions since 2008 have actually worsened for many people—from the overhang of the global recession to a flat recovery.
COVID-19 was just a piece of icing on an already overburdened cake.
Using cannabis to help relieve some of these symptoms seems like a very sane, logical, and increasingly legal option.
While it is unsurprising that UNODC would produce this kind of report, even after the UN moved cannabis to a list of less dangerous drugs, including an apparent parroting of highly suspect U.S. government data, it is a telling development. This is the same kind of distortion and misapplied association that dragged prohibition out as long as it has.
Using a drug’s legalization combined with a disastrously disconnecting event like a global Pandemic to make unfounded associations about cannabis use is disingenuous to say the least.
To appear to parrot a U.S. national study which reached similar conclusions while being equally light on the data and association front is just another sign that the UN is still overwhelmingly influenced by U.S. policymakers—and anti-reform ones at that—who will stop at nothing to try and halt the green tide of change.
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While witnessing the legal cannabis industry continually blossom over the years has been an exciting and invigorating experience for many, it’s also becoming increasingly challenging to ignore the amount of plastic waste involved. As states are required to enforce cannabis compliance, which generally means child-proof packaging for any products leaving the building, the result is often an abundance of single-use plastic that is more challenging to recycle than materials you might find at the grocery store.
Vermont’s Cannabis Control Board is looking to change that. In new “Guidance on Packaging,” released earlier this month, the board states that “packaging that is intended for consumer purchase at a retail location shall be reusable and shall not be plastic.” The guidance gives examples for acceptable reusable materials, including glass, tin, cardboard, and bamboo.
The packaging for cannabis must be child-deterrent and opaque. The guidance defines cannabis as all parts of the plant, including seeds; resin extracted from any part of the plant; and any compound, manufacture, salt, derivative or preparation of the plant, its seed or resin.
This is a new clarification, as “child-deterrent packaging” means tear-resistant packaging that can be sealed in a way that “would deter children under five years of age from easily accessing the content of the package within a reasonable time” while still being simple for adults to properly use and access.
Child-resistant packaging, on the other hand, includes packaging designed or constructed to be “significantly difficult for children under five years of age to open,” or to obtain a toxic or harmful amount of the substance in the container “within a reasonable amount of time,” also that adults can easily use.
It may seem like a small distinction, but child-deterrent packaging is generally a less burdensome requirement from a packaging standpoint, usually requiring less use of plastic or other hard materials.
The packaging for cannabis products, meaning concentrated cannabis and product that is “composed of cannabis and other ingredients,” intended for use and consumption, including edibles, ointments, tinctures and vaporizer cartridges with cannabis oil, must be child-resistant and opaque.
It’s a rational distinction to make, given that there are less risks of danger for a young child accessing cannabis flower than a cannabis edible. For example, a child would have to figure out some way to smoke the flower to experience its effects, whereas an edible or anything with activated THC would have a psychoactive effect upon consumption.
The new guidance also says that a licensee may seek a waiver to the prohibition on plastic consumer packaging if they can demonstrate a hardship in securing non-plastic packaging, including unavailability of non-plastic packaging; inability to achieve child-resistance; or the necessity to preserve shelf-life stability, prevent cannabis or cannabis product contamination or avoid exposure of cannabis/cannabis products toxic or harmful substances.
For those attempting to secure a waiver, a licensee must propose a packaging alternative that uses “de minimis plastic,” meaning only the amount of plastic “reasonably needed” to overcome the hardship identified in the waiver petition.
Vermont became the 11th state to regulate adult-use cannabis sales and the second state to do so legislatively, rather than through a voter initiative, nearly two years ago. Governor Phil Scott announced on October 7, 2020 that he would allow S. 54—the bill that would regulate and tax cannabis sales in the state—to become law without his signature.
“I know it is difficult to take on these complex issues remotely and during this unprecedented Pandemic,” Scott said in a statement at the time. “Again, I thank the legislators who worked to move toward me over the past two years on this issue. Nevertheless, the Legislature has much more work to do to ensure equity in this new policy and to prevent their work from becoming a public health problem for current and future generations. For these reasons, I am allowing this bill to become law without my signature.”
In 2021, the legislature moved forward to act on the promise of centering social equity, as the House and Senate passed S. 25, which looks to strengthen social equity provisions, requiring regulators to reduce or eliminate licensing fees for applicants who have been negatively impacted by federal enforcement of cannabis laws.
The new rules for plastic packaging will be in place when adult-use sales begin in Vermont, sometime later in 2022.
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Editor’s Note: A version of this article by Fred Rocafort was first published on Law360.
The U.S. Constitution’s free speech protections, found in the First Amendment, may present a legal recourse for cannabis brands in trouble for using marks that are similar to famous trademarks.
To be clear, a free speech argument will not be of help to those who simply copy a famous trademark, making no effort to differentiate between their mark and the famous one.
In the case of trademarks that simply evoke famous ones, however, the First Amendment could help preclude infringement claims.
Famous trademarks are a not-uncommon source of inspiration for brand creators. At times, brands take that inspiration too far, effectively appropriating a famous trademark.
For example, candymaker Ferrara Candy Co. sued a company called Akimov LLC in the U.S. District Court for the Southern District of Florida in May, alleging that it was selling THC-containing products bearing some of Ferrara’s registered trademarks, including those for its Nerds and Trolli candies.
Assuming the allegations are true, Akimov was not using marks inspired by Ferrara’s, but rather using Ferrara trademarks without authorization.
The harm presented to Ferrara and the public by the presence in the market of Nerds and Trolli products not made by Ferrara should be self-evident. Consumers could be misled into buying Nerds and Trolli products of unclear provenance, possibly of lower quality than the genuine products made by Ferrara.
That is without even taking into account the risks posed by the alleged presence of cannabis in Akimov’s products. For Ferrara, its reputation could suffer in case of any problems with Akimov’s products, as the problems could be associated with Ferrara’s trademarks, even if they were not in fact produced by Ferrara.
Moreover, sales of unauthorized Nerds and Trolli products to misled consumers, who in fact wanted the genuine article, would represent a loss of revenue to Ferrara.
In other cases, the inspiration drawn from a famous trademark might be obvious, but the potential for harm minimal or inexistent. For instance, last year Wm. Wrigley Jr. Co. sued a company, Terphogz LLC, that sells Zkittlez products in the U.S. District Court for the Northern District of Illinois, alleging infringement of Wrigley’s Skittles trademarks.
It is hard to argue that the Zkittlez name is not a play on Skittles, but whether the use of Zkittlez trademarks infringes on Wrigley’s Skittles marks is another matter.
In fact, the U.S. Patent and Trademark Office allowed the registration of two marks incorporating the word “Zkittlez,” not finding a likelihood of confusion between these marks and the Skittles ones.
In cases where their mark is not identical to the famous trademark, brand creators can argue that there is no likelihood of confusion. At the same time, the Constitution and its free speech protections might constitute another arrow in the quiver of brands that seek inspiration from famous trademarks, and find themselves as defendants in a trademark action.
In relevant part, the First Amendment to the Constitution provides that “Congress shall make no law … abridging the freedom of speech.” There is tension between the First Amendment’s mandate against abridgments of freedom of speech, on the one hand, and federal trademark rights provided for under laws made by Congress, on the other.
In particular, the Lanham Act prohibits the registration of a trademark that so closely resembles a registered mark or a mark that was previously used by another “as to be likely, when used on or in connection with the goods of the application, to cause confusion, or to cause mistake, or to deceive.”
Strictly speaking, brand owners’ freedom of speech is limited by this prohibition, as it means they cannot use certain words, phrases and logos in connection with their products.
Recognizing this tension between trademark rights and freedom of speech, courts look to strike a balance. In Iancu v. Brunetti, the U.S. Supreme Court in 2019 held that a provision of the Lanham Act prohibiting the registration of immoral or scandalous trademarks infringed on the First Amendment.
Previously, in Matal v. Tam, the Supreme Court in 2017 reached a similar conclusion regarding a prohibition on disparaging trademarks.
By contrast, courts have generally considered that the curtailment of First Amendment protections is acceptable when denying protection to a trademark that is likely to be confused with one previously used in commerce.
In its 1987 San Francisco Arts & Athletics Inc. v. U.S. Olympic Committee decision, the Supreme Court recognized that the suppression of certain words in the interest of trademark protection can have the unfortunate effect of also suppressing the expression of ideas.
At the same time, the court considered that this risk had to be weighed against the importance of protecting the value added to words through the efforts of parties who use these words as trademarks.
This calculus changes where artistic expression is implicated. In Rogers v. Grimaldi, the U.S. Court of Appeals for the Second Circuit in 1989 adopted a test under which, if free speech interests are implicated, a plaintiff claiming trademark infringement will only prevail under two circumstances. One is where the infringing trademark has “no artistic relevance” as used. The other is where the infringing trademark is explicitly misleading as to source or content.
It may seem like a stretch to view punny names like Zkittlez as artistic expressions. Yet in 2020, the U.S. Court of Appeals for the Ninth Circuit had no problem determining that a dog toy was an artistic expression in VIP Products LLC v. Jack Daniel’s Properties Inc. The “Bad Spaniels Silly Squeaker” toy resembled a bottle of Jack Daniel’s whiskey, and bears the phrase “the Old No. 2, on your Tennessee Carpet” instead of “Old No. 7 Brand Tennessee Sour Mash Whiskey,” as on actual bottles.
In its reasoning, the Ninth Circuit made clear that an expressive work need not be the sort of work to be exhibited in a gallery. Rather, the key is whether the use of the famous mark serves to express a point of view or communicate an idea. In the Ninth Circuit’s view, the use of elements associated with Jack Daniel’s brand image on a dog toy conveyed a humorous message entitled to free speech protections.
The Ninth Circuit’s reasoning above could be applied to some of the trademarks used by some cannabis brands that parody, or are inspired by, more famous trademarks. While not everyone will find trademarks such as Zkittlez to be amusing, it is reasonable to speculate that at least some people will be amused.
To be sure, not all cannabis trademarks being challenged by the owners of famous trademarks will cross the threshold of artistic expression, but arguably some do. This in turn means that, under the Rogers test, the use of these cannabis trademarks will only constitute infringement of more established brands under very limited circumstances.
Applying the Rogers test to the Zkittlez marks, its use has artistic relevance — there is no joke otherwise. Meanwhile, it is hard to argue that these explicitly mislead as to the source or content of the work.
The letter substitutions that differentiate the Zkittlez trademarks from the Skittles ones are significant. As such, they send an immediate signal to consumers, to the effect that these trademarks are not identifying the Skittles candies well known to the public. If anything, it can be argued that the Zkittlez trademarks seek to lead consumers away from confusion.
Contrast this to the facts in a lawsuit filed earlier this year in the U.S. District Court for the Southern District of New York by Hermes against Mason Rothschild, the creator of a nonfungible token collection named MetaBirkins.
Hermes has registered the BIRKIN trademark in connection with handbags. As Hermes alleges in the lawsuit, with many established brands entering the metaverse, consumers would expect that NFTs bearing famous trademarks would in fact be affiliated with the owners of said trademarks.
On the other hand, it would be far harder to make that argument if the chosen name for the collection was MetaVirkins, for example.
While decisions such as the one in Bad Spaniels provide legal inspiration for some cannabis brands in infringement hot water, it is critical to keep in mind that cannabis products are not chew toys. Courts might view free speech issues differently in cases where the allegedly infringed trademarks are used on products that are unlawful at the federal level, such as marijuana, as defined in the Controlled Substances Act, or CBD products whose introduction into interstate commerce violates the Federal Food, Drug and Cosmetic Act.
Owners of famous trademarks could argue that parodical or other similar marks should not enjoy trademark protection if they are used on unlawful products. The logical counterargument would be that the word, phrase or logo at hand is a First Amendment-protected expression first, and a trademark second.
For our purposes, however, it suffices to highlight this potential opening for a court looking for a legal distinction upon which to base a decision favorable to the famous trademark’s owner.
It is also worth noting that VIP Products applies only to the Ninth Circuit; other circuits may take different approaches.
Finally, it is worth stressing that the First Amendment will not come to the rescue of those cannabis brands that cannot register their trademarks at the USPTO because they are used in connection with products that are unlawful. For a brand facing a trademark infringement or dilution action, though, the Constitution might offer deliverance.
The post First Amendment May Help Cannabis Companies Beat Trademark Infringement Claims appeared first on Harris Bricken Sliwoski LLP.
