We have been asked by many clients whether we can assist them with registering trademarks connected to the sale of cannabis and cannabis-related goods and services. In the past, we needed to be very creative to push applications through to registration. Now, the U.S. Patent and Trademark Office (USPTO) may be making things a bit simpler for us and our clients.
This article is not intended to provide legal advice nor is it intended to be relied upon by you should you consider to involve yourself in a business related to cannabis and/or marijuana. If you are looking for actual legal counsel in the area, then you would first need to contact us for engagement terms.
On Novermber 8, 2016, the State of Florida’s constitution was amended to include Article 10 § 29 titled, “Medical Marijuana Production, Possession, and Use.” It exempts the medical use of marijuana by a qualifying patient or caregiver from any criminal or civil liability or sanctions under Florida law. Additionally, it exempts physicians from such penalties if they issue a physician certification with reasonable care to a person who has been diagnosed with a debilitating medical condition, as well as Medical Marijuana Treatment Centers if they are registered with the Department of Health and in compliance with applicable regulations.
The constitution defines what it means to have a debilitating medical condition as having:
- Crohn’s disease;
- Parkinson’s disease;
- Multiple Sclerosis; or
- “Other debilitating medical conditions of the same kind or class as or comparable to” those named above “and for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”
The final bullet point is very broad and vague so as to provide a bit of grey area with regard to the provision of medical marijuana to patients. It truly opens the door to use beyond those specific diseases listed in the bullet points prior and provides quite a bit of subjective analysis and decision making on physicians.
Furthermore, physicians are able to provide certification to a minor as long as a parent or legal guardian consents in writing.
Switching gears a bit, the aforesaid Medical Marijuana Treatment Centers (also referred to by the acronym “MMTC”) are entities that either acquire, cultivate, possess, process (including food, aerosol, oil and ointment products), transfer, transport, sell, distribute, dispense or administer marijuana products that contain mariuana, related supplies or even educational materials to patients or their caregivers (who must be at least 21-years-old).
Florida Statute 381.986, the “Medical Marijuana Law” (originally enacted in 2014), also addresses the medical marijuana industry and indicates, in part, that any company seeking to be an MMTC must apply for licensure on a form prescribed by the Department of Health and adopted in rule. It essentially created a competition for licensure with a limit on number of licenses to be provided as well as a steep application fee.
Only seven businesses were licensed to cultivate and sell low-THC marijuana prior to the Medical Marijuana Production, Possession, and Use amendment to the Florida constitution. Ten more licenses were to be granted since the Medical Use of Marijuana Act (Senate Bill 8-A) was passed in June 2017. Thereafter, four more licenses are to be issued for every 100,000 active, registered qualified patients in Florida’s medical marijuana registry. Thus, it is still a competition to obtain a license, and it is expensive (as highlighted below).
Any applicant must demonstrate that it has at least been in business in Florida for five consecutive years prior to applying, possesses a valid certificate of registration from the Department of Agriculture and Consumer Services, has the technical and technological ability to cultivate and produce marijuana, including low-THC cannabis and has the financial ability to maintain operations for the duration of a two-year approval cycle as well as the ability to post a $5 million performance bond.
Importantly, Florida’s amendment to its constitution only provides limited exceptions for medical use. Failure to go through the process of receiving the necessary physician certification can absolutely put someone at risk of violating relevant state laws. Further, the MMTCs must be very cautious to follow all relevant regulations in order to steer clear of any potential civil and/or criminal penalties.
The Application for Medical Marijuana Treatment Center Registration must be hand delivered to the Department of health in Tallahassee, Florida during normal business hours. It also must be accompanied by a non-refundable $60,830.00 application fee.
Additionally, the Florida constitutional amendment is clear that it does not purport to give immunity under federal law. That presents an interesting legal issue, since marijuana remains illegal under federal law (specifically, the Controlled Substances Act). There could be a strong argument that Florida’s medical marijuana law is not preempted by federal law, especially after the U.S. Supreme Court came out with its decision in Murphy v. National Collegiate Athletic Association, which should mean that the federal government cannot restrict states from implementing their own marijuana reform laws.
Overall, the industry is poised to grow in Florida and beyond, which is causing many individuals and corporations to consider involvement in the space. Retail sales in the U.S. from twenty jurisdictions were $6.5 billion in 2016 and are expected to rise to $30 billion by 2021. If you want to be involved in the space, you absolutely need to have an appreciation for the new laws that govern the industry.
In December 2014, United States District Judge for the Northern District of California, the Honorable William Alsup, granted the National Football League’s (“NFL”) motion to dismiss based on preemption under Section 301 of the Labor Management Relations Act of 1947 (“LMRA”) in Dent v. NFL. Section 301 of the LMRA applies to breaches of collective bargaining agreements (“CBA”) between an employer and a labor organization, which result in federal law governing them. Section 301 seeks to create a uniform interpretation of CBAs by using federal law because of the excessive burden of creating an agreement that complies with every state’s laws. Furthermore, as Green v. Ariz. Cardinals Football Club, LLC, 21 F. Supp. 3d 1020, 1025 (E.D. Mo. 2014) noted, applying state law to CBA analyses “might lead to inconsistent results since there could be as many state law principles as there are States.” Cramer v. Consolidated Freightways, Inc., 255 F.3d 683, 693 (9th Cir. 2001) summed it up by declaring, “[A] state law claim is not preempted under [Section] 301 unless it necessarily requires the court to interpret an existing provision of a CBA that can reasonably be said to be relevant to the resolution of the dispute.”
The court in Dent found that all of plaintiffs’ claims were preempted under Section 301, and therefore the matter must be arbitrated in accordance with the CBA between the NFL and the National Football League Players Association (“NFLPA”). In deciding this way, the court tracked the expansion of player medical rights under the CBA and acknowledged the need to reference the CBA to prove whether the NFL has been negligent. It also noticed how the CBA allocates much of the health-related responsibilities to the individual teams, thus negating any duty at the League level.
Arbitration gives the NFL a noticeable advantage over the players, as both the NFLPA and the NFL Management Council must approve the arbitrators. See NFL CBA (2011) art. 44, § 7 at 195. Commentators have acknowledged that “[w]hile plaintiffs in employment disputes succeed in thirty-six percent of federal court cases, only twenty-five percent of such plaintiffs succeed through arbitration, with the average award being less than eighteen percent of what prevailing [plaintiffs] receive on average from federal courts.” John Guccione, Moving Past a “Pocket Change” Settlement: The Threat of Preemption and How the Loss of Chance Doctrine Can Help NFL Concussion Plaintiffs Prove Causation, 22 J.L. & Pol’y 907, 924 (2014). Arbitration also requires adjudication using contract law rather than tort law, making punitive damages unavailable to the players, which would help deter team physician medical malpractice in the future. Finally, arbitration requires the proceedings to be confidential, hindering the parties from disclosing the truth to the public. For example, during the concussion litigation, the NFL never had to admit any fault during the negotiations nor did it have to admit it knew of the dangers of repeated hits to the head.
Because of the difficulty of circumventing the CBA, legitimate medical malpractice claims against team physicians often pass without the NFL having to disclose hardly any information regarding the specifics of the incident(s). Thus, arbitration has the potential to continually allow the NFL to provide inadequate medical care to its players and not confront the inherent problem of team physicians serving both the player and the team simultaneously.
Back in May 2014, former NFL players filed a lawsuit in a San Francisco federal court on behalf of over 600 former NFL players from 1969 to 2008. The complaint alleges that the NFL illegally supplied the players with narcotics and painkillers to mask their injuries during games. This alleged medical malpractice has since led to medical complications later in the players’ lives.
According to a recent Washington Post survey (see complaint), close to 9 out of 10 former players said that they played while injured. Also, 68% said they did not feel like they had a choice but to play hurt. Consequently, the complaint alleges that the NFL gave these players no choice but to play injured and acted unethically and illegally by substituting “pain medications for proper healthcare to keep the NFL’s tsunami of dollars flowing.” The complaint concludes that, “[i]n contravention of Federal criminal laws, the NFL has intentionally, recklessly and negligently created and maintained a culture of drug misuse, substituting players’ health for profit.”
This lawsuit portrays the NFL and its member teams as an astonishingly unethical entity by suppressing players’ pain to keep them on the field. Team doctors and trainers are described as continually administering the players medications without prescriptions and without warning of the dangers of addiction and side effects. The primary motive was to speed up the return of hurt players in order to maximize profits. At times, players were not even told about broken bones and were instead given pills to numb their injuries. There are also allegations that physicians were ignoring players’ medical histories, which could have resulted in fatal injuries due to each player’s “unique body chemistry.” In effect, the lawsuit depicts the NFL as a greedy enterprise which will stop at nothing to make money, including treating its players as “disposable assets” and “thoroughbreds” rather than human beings. The NFL and its team physicians, if the allegations prove true, would be in violation of the Controlled Substances Act, state laws, and the American Medical Association Code of Medical Ethics.
The lead attorney for the former players, Steven Silverman, listed the painkillers to be Percodan, Percocet, and Vicodin, with other common drugs administered being Ambien and Toradol. To illustrate the pervasiveness of this practice by the teams’ physicians, Silverman was quoted as saying the drugs were “handed out like candy at Halloween” and further noted that some of the drugs were even given in combinations, which the complaint refers to as “cocktailing.” The long-term effects of these drugs, according to the former players, have been kidney failure, high blood pressure, violent headaches, chronic muscle and bone ailments, and permanent nerve and organ damage.
While the American Medical Association provides a code of ethics for its physicians, it is difficult for the NFL to ensure that the physicians are doing their job correctly and ethically. The NFL has failed over the years to stop this mistreatment and lack of informed consent as evidenced by this case, the concussion litigation, and other cases involving a range of issues. Without authoritative action to protect current and former players, these problems will persist, as the costs of these lawsuits do not outweigh the benefits that this mistreatment provides the NFL through profits.
It will be interesting to see how this lawsuit plays out. There is little coverage of this lawsuit today. However, as it progresses and picks up steam, these allegations could prove to be just as threatening to the NFL as other recent controversies. More than likely, the NFL will try to settle early in attempt to avoid discovery and to avoid revealing potentially harmful information. After the Ray Rice scandal, concussion litigation, and a plethora of other blemishes on the NFL’s reputation lately, it is expected that the NFL will seek to avoid more litigation and negative exposure.
The following article was written by Spencer Wingate.
Denver Broncos linebacker DJ Williams and defensive lineman Ryan McBean were each recently suspended six games without pay for violating the NFL’s performance enhancement policy. The players maintain they are innocent and have filed a lawsuit against the league to have the suspensions overturned.
The players failed the test in August because they allegedly substituted a non-human specimen during their urine tests. The collector during the testing has since been fired by the NFL for breaching protocol and procedural irregularities. Williams’ lawyer, Peter R. Ginsberg, stated the collector tampered with testing procedure and submitted urine samples to the league that were not human. The suit, filed in Denver District Court Monday, also alleges that the NFL violated chain of custody procedure during the appeal process. When Williams and McBean appealed the ruling during the season, their lawyers were not present. The hearing officer, Harold Henderson, denied the appeal and ruled against the players. The players believe since Henderson works for the commissioner’s office, he did not act as an impartial arbitrator and refused to objectively view the facts. They claim their rights and reputations were trampled on by the league. The NFLPA has publically supported the players and questioned the process. Williams and McBean want the suspension vacated by the NFL.
Broncos Tight end Virgil Green was suspended at the same time by the NFL for four games. He is not involved in the lawsuit. He was taking medication that led to his failed drug test that has since been approved. The NFL has frequently been in the news for lawsuits filed by retired players over injury related matters. However, it is not often that active players seek legal action against the league. Reigning National League MVP Ryan Braun recently made headlines in baseball when he had his 50 game suspension for a positive drug test overturned. Major League Baseball supported the collector and confirmed he followed protocol; yet Braun still won. It seems Williams and McBean will have a more compelling case as the NFL has fired the collector while confirming protocol was not followed.
The following article was written by Spencer Wingate.
Syracuse University self-reported potential violations of their drug policy several months ago, which has led to an NCAA inquiry. Yahoo! Sports reported that at least ten players starting in the 2000-01 season tested positive for banned recreational substance(s). The violations should have resulted in suspensions, but the players were allowed to play in games and participate in practices. Yahoo! cited that one player failed four drug tests but received no punishment. Syracuse stated that the violations were over the past decade, and no current student-athletes have violated drug protocol. The NCAA now must determine who was ineligible yet still participated. The time period of the drug violations include the lone national title season in 2003.
The NCAA has no uniform policy regarding drug testing or punishment. The member institutions are allowed to police themselves and determine their individual policy. When the NCAA tournament begins later this month, the organization will begin random tests through the National Center for Drug-Free Sport of every team at each game. Schools are not mandated to institute a drug policy, which leads certain schools to wait until post-season play before student-athletes are ever tested. Syracuse broke their own policy and self-reported the allegations, leading to the assumption sanctions handed down by the NCAA will be lenient. The notion is completely valid as Syracuse did violate a policy they voluntary instituted. They did not attempt to cover-up the allegations, and instead, openly came clean. In another view, they broke a policy and levied no sanctions – lacking institutional control. The bigger issue presented with the situation is the NCAA’s lack of uniformity and accountability. They have no problem enforcing restrictions with paying athletes, booster involvement, campus visits, etc. The NCAA claims these rules must be established for the betterment of student-athletes and to protect them. Why should the association not be held responsible for establishing a universal drug policy or protocol as well? It seems that would better serve the welfare of not only student-athletes, but also their universities.
The following article was written by Cyle Kiger.
A focus in all major sports continues to be drug testing and the use of Human Growth Hormone (HGH). Add the National Hockey League to the list in strengthening its own policy with the World Anti-Doping Agency (WADA). The Chicago Tribune reported that the WADA has had conversations with the NHL and its players association about the topic. WADA would like to have the framework for a new drug testing policy in place before the end of the Stanley Cup playoffs.
Currently, it is thought that the NHL has the weakest anti-doping program of the four big leagues in the US.
In general, the NFL prohibits the use of anabolic steroids, stimulants and growth agents. Masking agents are considered a prohibited substance along with anabolic agents and hormones (a full list can be found on link above, p. 14).
The NFL has a pre-employment test, in which case a positive test will be subject to medical evaluation and clinical monitoring. An annual test to all players for prohibited substances happens at least once per year. The policy sets forth that testing shall occur at training camp when the player reports. In the preseason and regular season setting, each week, 10 players from every team are randomly selected by computer to submit to a test without regard to how many past times the player has taken a test. Playoff teams are subjected to the same method as long as they are contending for the Super Bowl. During the offseason, players under contract are subject to up to 6 tests.
A player with a previous positive test of a prohibited substance, including collegiate and combine tests, are subject to reasonable cause testing at the frequency of the Independent Administrator.
Disciplinary consequences do ensue after testing positive for a prohibited substance. For a first time offense, the commissioner has the option to suspend the player for a minimum of four regular/post season games, unpaid. A second time offender will be suspended for a minimum of 8 games without pay. And the third time a player ends up with a positive test, he is suspended for a minimum of 12 months. The players can appeal the Commissioner for reinstatement, but the matter is only in the Commissioner’s hands.
The policy states that all players are prohibited from using, possessing, selling any drug or steroid. Drugs in the Schedule II of the Controlled Substances Act are considered prohibited by the MLB.
Procedure for league testing is only during season play and there is no random testing. However, testing for the drugs of abuse or Schedule II drugs, is on a basis of reasonable cause. For this instance, a member of the Health Policy Advisory Committee (HPAC) needs to have evidence that a player has used, possessed or sold drugs within the last 12 months. If a majority vote is reached by the board, the player has 48 hours to take the test.
The MLB implemented a harsh policy for positive steroid test results, which needed to be done. After a first positive test is a 50 game suspension. A second positive test yields a 100 game suspension. Lastly, a third positive test brings a lifetime suspension to the player.
Use of prohibited substances are less strict but do carry consequences. The first offense is a 15-30 day suspension with a possible fine of $10,000. The second offense is 30-90 days with a possible fine of up to $50,000. A third offense is a minimum one year suspension and possible fine of up to $100,000. A fourth offense brings a minimum two year suspension.
The NBA’s recent Collective Bargaining Agreement prohibits many of the same things the MLB prohibits. Schedule II drugs, steroids, masking agents and performance-enhancing drugs are the main drugs listed in the new CBA.
The NBA has implemented random testing in the CBA. Players are subject to four random tests each season (Oct 1-Jun 30). The NBA uses a third-party entity to test; this relieves the league of scheduling and selecting the players for testing.
They also have reasonable cause testing; if the NBA or NBPA receives information that provides them with cause to test a player, the player has 24 hours within notification to take the test. After authorization for testing, the player will be tested four times in six weeks.
A program that I think is outstanding that the NBA has implemented is the “Coming Forward Voluntarily” program. It is described as when a player seeks out help for medical treatment and counseling, the team will take care of the expenses as long as the player takes the necessary steps (found on pg.11 of CBA) to do so.
The penalties for drugs of abuse states that during random testing or reasonable suspicion testing, a positive result will dismiss and disqualify the player from the NBA. If a player tests positive for marijuana he will be submitted into the “Marijuana Program.” After the first positive test result, players are subject to fines and suspensions of 5 games. For performance-enhancing drugs, the increments in which suspensions are issued are 10 games, 25 games and 1 year suspension per positive result. A fourth positive result will dismiss the player from the NBA as well.
Currently, the NHL tests every player between 0-3 times per year. Tests only happen during the regular season. I think that a major mistake that the NHL makes is that every player is eligible for testing, but not all of them get tested.
The NHL tests for steroids, hormones and basic doping tests. The penalties inferred on the players are a 20-game suspension for the first positive result and a 60-game suspension for a second time. Like the other leagues, lifetime bans are used by the NHL after a third positive test result.
From reports, I expect to see something done by the NHL and the WADA in conjunction with the other major sports leagues in the nation. From the different types of policies, I think that the NFL has the best options to keep its league safe and under control.
My policy, in short, would look something like this:
- Pre-employment testing to all incoming free-agents and rookies and a physical.
- A similar random testing that the NFL has implemented, where each team has 3 players a week from their roster get tested at random a maximum of 3 times throughout the season.
- Reasonable Suspicion testing that is very similar to the NBA. In fact, all leagues should adopt their ‘Marijuana Program.’ Also Schedule II drugs would be prohibited and tested throughout the season.
The current NHL penalties are on point considering the length of a season. Though the other option would be to move the lifetime suspension to the fourth positive result, and the third offense would be a season suspension.
The NHL surely has some catching up to do to their competition. Hopefully within the next few months, with the help of WADA, they’ll re-draft a drug testing policy and get with the times. For issues such as drug testing, the big 4 sport leagues in America should pull ideas from each other because each has their own unique issues and ways to settle them. For example, the “Coming Forward Program” in the NBA could have saved a life, case in point, Derek Boogaard.