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Canna Law Blog Cited by U.S. Senators in Letter to the Attorney General

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Last week, we discovered that U.S. Senators Elizabeth Warren and Cory Booker cited our own Vince Sliwoski in a letter to Merrick Garland, the U.S. Attorney General, pressing for the end of cannabis prohibition. The Warren-Booker letter, dated October 6, 2021, advocates for DEA to remove cannabis from the federal Controlled Substances Act— which would decriminalize the plant at the federal level. The letter cites a 2018 blog post by Vince discussing international developments with cannabis at the United Nations level. Readers, we feel heard!

Warren has written a few of these high-profile letters on cannabis over the years, going back to 2016. Back then, her goal was re-scheduling “marijuana”, from Schedule I to Schedule II under the federal Controlled Substances Act. Vince critiqued Warren’s proposal at the time, explaining why rescheduling would have minimal effect and why descheduling is the far better course. Was Warren listening? We’d like to think so.

This more recent Warren/Booker letter does take the recommended course, and is a great example of how high-profile politicians have evolved on cannabis policy over the past half-decade. The best news of all is that Warren, Booker and others continue to press. Most recently, Warren signed onto yet

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States to Feds: End Cannabis Prohibition Now

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After a vote last week, the National Conference of State Legislators (NCSL) adopted a revised cannabis policy measure (the “Directive“) which supports federally descheduling cannabis, as well as cannabis banking reform. At this point, it’s abundantly clear that the states have moved beyond cannabis prohibition.

The NCSL is a non-partisan organization that represents all state legislators nationwide. A state legislator present at the summit, held in Denver, said that most of the discussion leading up to the vote centered on federal cannabis banking reform, but there was no debate on the language of cannabis legalization. The legislator said that there was minimal opposition, with an estimated five to seven states of the 44 in attendance that vocalized their opposition.

NCSL passed similar measures back in 2017 and 2018 calling for cannabis descheduling, though those measures were limited in scope, specifying that states should be free to establish their own cannabis legislation without federal intervention. This time, the NCSL made an explicit call for federal cannabis legalization. The Directive also states that “until cannabis is federally descheduled,” the federal government should focus on enforcing penalties for criminal enterprises in “illicit” cannabis production and distribution instead of citizens who comply with state

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Interstate Cannabis Agreements in California

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I get asked a lot of questions about what California cannabis licensees can and cannot do under the Medicinal and Adult-Use Cannabis Regulation and Safety Act (“MAUCRSA”). California is actually business friendly once operations get going with a license– despite its many issues with the cannabis industry. For example, vertical integration is allowed. There’s no license cap, and you can apply for a license year-round. We allow for cannabis delivery apps. And California permits consumption lounges in line with local law.

So what’s next? Well, at this point California is also going to try to allow for interstate cannabis agreements, similar to what Oregon did back in 2019 under its Senate Bill 582. In California, the proposal up for discussion is SB 1326.

Interstate cannabis agreements

According to AB 1326:

MAUCRSA specifies that its provisions shall not be construed to authorize or permit a licensee to transport or distribute, or cause to be transported or distributed, cannabis or cannabis products outside the state, unless authorized by federal law. This bill would make an exception to the above-described prohibition and would authorize the Governor to enter into an agreement with another state or states authorizing medicinal or adult-use commercial cannabis

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Deceptive Matter and Canna Brands

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Deceptive matter is yet another pitfall faced by canna brands as they take steps to protect their intellectual property. According to the U.S. Trademark Act (commonly known as the Lanham Act), such matter may not be registered as a trademark (15 U.S.C. § 1052(a)). While to some extent this is a commonsense rule that seeks to protect the public, in practice its application can be surprisingly expansive. Cannabis brands should avoid using trademarks that could in any way be considered deceptive matter.

When determining if a trademark consists of deceptive matter, USPTO applies a three-part test:

(1) Is the term misdescriptive of the character, quality, function, composition or use of the goods?

(2) If so, are prospective purchasers likely to believe that the misdescription actually describes the goods?

(3) If so, is the misdescription likely to affect a significant portion of the relevant consumers’ decision to purchase?

In some cases, it’s not hard to conclude that USPTO will likely consider a trademark to consist of deceptive matter. Taking a hypothetical example, imagine a vodka called CannaVodka, which does not in fact contain cannabis. The term “Canna”, as used in this imaginary trademark, is clearly misdescriptive of the composition of the

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