Cannabis laws and regulations in both the US and Europe can be complicated. That’s why we’ve produced a handy comparison of key aspects regarding medical and recreational cannabis laws you should know.

Thanks to a renewed and increasing scientific interest in the medical use of cannabis-derived substances (cannabinoids), innovation in the field of cannabis is rising at an exponential rate. In the last few years, cannabinoids have been harnessed to help treat a variety of conditions, from chronic pain and neurological disorders to depression, anxiety and sleep disturbances. Whilst the scientific jury is out on the clinical efficacy of some of these treatments, the market is booming nonetheless.

Although scientists agree cannabis has a myriad of useful properties, the legal landscape is constantly changing. 2021 promises to see even more US states decriminalising or legalising recreational cannabis. Elsewhere, most EU countries now allow, or are considering allowing, the medical use of cannabis or cannabinoids in some form. However, the approaches taken vary widely in terms of both the products authorised for sale and the governing regulatory frameworks.

Here's the latest (April 2021) patent and trade mark overview:

 

 

USA

Europe

Is medical cannabis legal?

Medical cannabis is legal in 35 states, although still federally prohibited. Some states’ laws allow for fairly lax definitions of “medical”, such as a letter from a physician as prima facie evidence that marijuana (including THC content) can alleviate pain and suffering.

Individual European countries have varying levels of decriminalisation, with some maintaining an outright ban. Like the USA, there is no blanket “federal” permission across the EU. Many countries may only permit “pharmaceutical” level cannabis, in the form of prescription drugs like Epidiolex®.

Is recreational cannabis legal?

Federally, no. However, at a state level, many states’ laws conflict with federal policy, with 17 states having legalised recreational cannabis and another 13 states decriminalising use.

Recreational cannabis is not legal in any EU Member State, nor the UK. However, possession of cannabis (in varying quantities) is decriminalised or in practice, not prosecuted in several EU Member States. There is no pan-EU law across the free market. In the UK, cannabis is classified under the Misuse of Drugs Act.

What about low THC content, non-psychoactive hemp or CBD products?

The 2018 Farm Bill removed hemp from the definition of cannabis, allowing for businesses to operate for products with less than 0.3% THC (dry weight) at a federal level.

Low THC products, or “CBD products”, are legal in various European countries and subject to national thresholds on THC content. In the UK, a CBD product is legal provided it contains less than 1mg of THC. Growing hemp requires a UK government licence.

Can I get a trade mark registration for my cannabis goods?

At a federal level, the specification of goods must stipulate the federally permitted thresholds for cannabis products. State-level protection may be available for cannabis related goods and services, subject to that state’s laws.

European-wide EUTM protection can be obtained for cannabis products, even if the legality of these products varies across different Member States. In the UK, protection is not available for what would be criminalised products.

Can I get a patent for a new cannabis based drug?

The federal government has been reluctant to comment on the patentability of cannabis-based inventions. However, the USPTO is willing to grant patents protecting natural products, provided they have “markedly different characteristics” from the natural substance.

European law explicitly states that illegality is not in and of itself prohibitive of patenting inventions. The EPO applies the same standards for patentability of cannabis inventions as it does to any other inventions, e.g. that the invention is novel (new) and possesses an inventive step.