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The regulatory landscape for hemp and CBD products has grown more complex following the recent enactment of a federal ban targeting intoxicating hemp-derived cannabinoids. While the 2018 Farm Bill had opened the door for hemp’s lawful production and removed it from the Controlled Substances Act (CSA), that opening has narrowed once again—this time through bipartisan congressional action and executive approval.
The new law, signed in 2024, prohibits hemp-derived cannabinoids that produce intoxicating effects—such as delta-8 THC and similar synthetic or semi-synthetic compounds—even if they are sourced from federally legal hemp. This represents a marked shift in federal enforcement posture and introduces further challenges for businesses seeking to build and protect hemp-based brands, particularly those operating in the grey area between cannabis legality and consumer product innovation.
Since 2019, trademark examiners at the United States Patent and Trademark Office (USPTO) have applied Examination Guide 1-19, which interprets the 2018 Farm Bill to allow trademark registration for some hemp-derived goods—but only if they do not violate other federal laws, most notably the Federal Food, Drug, and Cosmetic Act (FDCA).
Under this guidance:
With the newly enacted federal ban, the situation becomes even more complicated. Products containing delta-8, HHC, THCO, and other similar cannabinoids—once marketed as Farm Bill-compliant—may now fall squarely into the category of federally prohibited substances. Accordingly, any attempt to register trademarks for these goods will be rejected on grounds of illegality under both the CSA and the FDCA.
The booming market for hemp-derived cannabinoids has been met with tightening federal oversight. This legal disconnect leaves brand owners with legitimate concerns:
The USPTO is expected to revise or expand its examination guidelines to reflect this change in federal law, particularly as it relates to intoxicating cannabinoids. When that update comes, we may see stricter scrutiny across the board—not only for delta-8 and similar compounds but for any product that may blur the line between hemp and marijuana or raise health and safety concerns under the FDCA.
If you’re thinking about launching an “equivalent” perfume line, here are a few red flags to avoid:
For businesses in the hemp sector, the shifting legal framework underscores the importance of staying aligned with evolving definitions of legality at the federal level. Even products that are legal under state law—or that were once considered federally compliant—may now fall outside the bounds of lawful use in commerce under the Lanham Act.
Until the USPTO updates its guidance to reflect this new federal ban, Exam Guide 1-19 remains the operative standard. But for many CBD and hemp businesses, especially those producing now-prohibited cannabinoids, the path to federal trademark protection has effectively narrowed—if not closed entirely.
The federal ban on intoxicating hemp products marks a major turning point for the CBD and hemp industries. While the 2018 Farm Bill once offered hope for expanded access to federal trademark protection, recent developments have reversed course for many businesses. With Exam Guide 1-19 still in force and no new USPTO guidance yet issued, brand owners are left navigating uncertainty.
Until federal agencies issue clear and updated frameworks, the key question remains: can your product be lawfully sold in interstate commerce under both the CSA and the FDCA? If the answer is no, then federal trademark protection will remain out of reach.
