In the last decade we have seen an increase in the marketing and sale of products containing Cannabidiol (better known as CBD), which is an active compound derived from the marijuana plant.
Marijuana or cannabis is a mixture of dried cannabis sativa flowers that is most often smoked and is considered a drug by the World Health Organization (WHO). In fact, the Organization states that cannabis is “by far the most cultivated, trafficked and abused illicit drug. Half of all drug seizures worldwide are of cannabis. The geographical spread of these seizures is also global, covering practically every country in the world. About 147 million people, 2.5% of the world’s population, use cannabis (annual prevalence) compared to 0.2% who use cocaine and 0.2% who use opiates. In the current decade, the abuse of cannabis has grown faster than the abuse of cocaine and opiates. The fastest growth in cannabis abuse since the 1960s has occurred in the developed countries of North America, Western Europe and Australia. Cannabis has been more closely associated with youth culture and the age of initiation is usually lower than that of other drugs»[1].
The psychoactive constituent of cannabis is called tetrahydrocannabinol (better known as THC) and this is the active compound that produces the “stuff” of marijuana.
Marijuana has also increasingly been described as having medical and therapeutic properties, particularly the compound CBD. Known effects of its use include better sleep, reduced anxiety, and pain relief.
CBD can be found in a wide range of products including oils, vapors, gummies, topicals and capsules. But does it work? yes and no There is evidence that CBD products can help with insomnia and reduce anxiety, but there is no evidence that they are effective in curing cancer – a widespread rumor that leads more people to find answers in alternative medicine instead of traditional treatments such as chemotherapy. and radiotherapy. This is a sensitive topic, and we are in no way denying the potential benefits of CBD in reducing some of the symptoms caused by these serious illnesses and those of chronic illnesses, such as fibromyalgia. However, there is no scientific evidence to support these larger claims about the use of CBD which are most likely just an excellent form of marketing.
That being said, is CBD consumption legal? It also depends, specifically, on where you are on the Globe. There are countries where CBD is legal for both recreational and medicinal purposes, others have exceptions for medicinal purposes only, and in some of these both forms are still illegal.
More companies selling marijuana-CBD-derived products are entering the markets, and as a result, we are facing an increase in applications for trademark registrations listing these products.
In this sense, when presenting a product derived from CBD or cannabis we must check if the country allows the inclusion of these products and this will depend directly on the specific laws and regulations of each country.
Now, is it possible to register trademarks for products containing CBD? In almost every jurisdiction in the world, one of the criteria for registering a trademark is its legality. In a country where the law prohibits the use of CBD and cannabis, the likelihood of obtaining a registration certificate is low.
The Nice Classification lists products containing cannabis, for example: cannabis plants and cannabis, unprocessed, in class 31 and cannabis for medical purposes, in class 5. Cannabidiol can also be found on the list, it is in say, in class 5 as cannabidiol for medical use.
In this sense, when presenting a product derived from CBD or cannabis we must check if the country allows the inclusion of these products and this will depend directly on the specific laws and regulations of each country.
And what about Nigeria? In Nigeria, CBD products can only be used for medicinal or scientific purposes provided they meet certain conditions and after obtaining the relevant license.
In terms of regulatory laws and regulatory bodies, the National Agency for Food and Drug Administration (NAFDAC) is the main regulatory agency for food and pharmaceutical products. Among other powers, it has the authority to regulate the manufacture, import, export, advertisement, sale, distribution and use of medicinal cannabis in Nigeria. Accordingly, in order to sell products containing CBD in this jurisdiction, a company requires approval from NAFDAC.
The National Drug Law Enforcement Agency (NDLEA) and the Federal Ministry of Health are included in the regulatory agencies directly responsible for controlling the use, distribution and sale of cannabinoid drugs in Nigeria.
The latter has issued various laws and regulations on the subject, namely the Indian Hemp Act, 1966, the Dangerous Drugs Act, 1935, the NDLEA Act, Cap. N30, LFN, 2004 and the NAFDAC Law.
In Nigeria, the Indian Hemp Act, 1966 (a federal piece of legislation), makes the planting, cultivation and importation of Indian hemp an offence. A sentence of death or imprisonment of not less than twenty-one years is prescribed, upon conviction, for a person who plants or cultivates cannabis in Nigeria. The Act defines Indian hemp as “any plant or part of a plant of the genus Cannabis”. However, the above provisions and prohibitions are subject to the provisions of the Dangerous Drugs Act 1935.
Section 12 of Part V of the Dangerous Drugs Act 1935 authorizes the importation of medicinal cannabis into Nigeria, subject to conditions to be granted by the Minister of Health. Indian hemp, a common cannabinoid drug, is therefore legal and registrable under Nigerian law for medicinal purposes only. The use of medicinal cannabis is subject to the following conditions:
1. A license from the Minister of Health must be obtained for the importation of cannabinoid drugs; i
2. Cannabidiol medicines must be registered with NAFDAC before they are manufactured, imported, advertised, sold or distributed in Nigeria.
The same procedure and documents to be submitted for registration will apply to the food or medicine category. Regardless of the product to be registered, NAFDAC will only issue a registration number and certificate after the product has passed the standard and quality test conducted by the agency.
Any company engaged in the production, manufacture and distribution of food, imported food, medicine, export of semi-processed food and cosmetics must incorporate a company with the Corporate Affairs Commission (CAC) before registering its business product in the NAFDAC.
It is also important to note that some products can be registered with NAFDAC without obtaining the NAFDAC registration number. For NAFDAC registration of foreign products without acquisition of NAFDAC registration number, an import permit must be obtained.
It is important to note that NAFDAC product registration costs usually depend on the specific products to be registered. There are different prices for product categories. Some of the specific costs that an applicant must pay include the cost of product registration itself, import permit and inspection if applicable.
Cannabis (hemp, marijuana) and its chemical products are generally illegal in Nigeria, the import or export of hemp is an offense punishable by imprisonment for not less than 21 years and no option to pay a fine However, the medical preparation of Indian hemp is exempt and legal, to the extent that it does not contravene the Federal Law known as the Dangerous Drugs Act of 1935, the importation of medically prepared Indian hemp is legal and lawful in Nigeria, subject to the registration with NAFDAC. and obtaining the license from the Minister of Health. These conditions must be strictly followed before the manufacture, importation, advertising, sale or distribution of cannabidiol drugs in Nigeria.
We currently do not have precise guidelines for checking trademark registrability for products containing CBD and Cannabis, but it appears that the Trademark Office is accepting such applications (eg: Trademark No. F/TM/ O/2019/152770 – MOHAWK, applied). in class 34, including goods such as “hemp-derived cigarettes containing less than 0.3% THC, cannabis, cigarettes containing cannabis (…)” and trademark no. F/TM/O/2019/160541 – VELO, applied in class 5 including products such as “hemp extract products, CBD oil, dietary preparations containing CBD oil (…)” Which brings us to believe that if the brand’s product listing complies with the Cannabis and Cannabidiol Laws and Regulations and falls within the exceptions referred to herein, the Trademark and Patent Office will not reject a trademark registration for that reason.
Alternatively, generic terms may be listed to protect products containing CBD (supplements, oils, extracts), but sale, import, export and distribution will always depend on the prior approval of the competent bodies.
However, we advise our clients to seek an assistant before filing a trademark for these products to check for registrability.
We are happy to assist with the application of the necessary licenses for the use of the product from NAFDAC and the office of the Honorable Minister of Health as required by law, as well as assistance with trademark registration for products containing CBD and CBD-derived substances.
[1] https://www.who.int/teams/mental-health-and-substance-use/alcohol-drugs-and-addictive-behaviours/drugs-psychoactive/cannabisas consulted by the authors on June 1, 2022.