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26 Sep 2019
BY Fae Hassan

Weeding out the old

An influx in the sale of cannabis products in South Africa has caused much confusion among consumers. We have seen cannabis beverages, oils, soaps, creams and even foods infused with cannabidiol (CBD) oils. There have also been numerous exhibitions and festivals across the country demonstrating the health benefits of such goods. As you are no doubt aware, the Constitutional Court (CC) in the judgment of Minister of Justice and Constitutional Development and Others v Prince; National Director of Public Prosecutions and Others v Rubin; National Director of Public Prosecutions and Others v Acton and Others [2018] ZACC 30, held that certain provisions of the Drugs and Drug Trafficking Act and the Medicines and Related Substances Act are unconstitutional based on one’s right to privacy, the result being that the use, possession or cultivation of cannabis in private for personal consumption was decriminalised. It has been stressed that only the private use of cannabis is permitted. So, how are these “cannabis products” available for sale in our local stores?

While it is marijuana that is commonly associated with the word cannabis, the starting point is to understand that there are variants and derivatives of cannabis. These variants and derivatives contain different levels of tetrahydrocannabinol (THC), the component in cannabis responsible for that cloud nine feeling – so we’re told! While the sale of THC and marijuana products remains illegal in South Africa, products containing CBD and hemp (which contains low levels of THC) are legally available for sale. Such preparations containing CBD must comply with the standards published by the Minister of Health as Regulation 756 in Government Gazette no. 42477 on 23 May 2019, namely:

• it must contain a maximum daily dose of 20mg CBD with an accepted low risk claim or health claim which only refers to:

o general health enhancement without any reference to specific diseases;
o health maintenance; or
o relief of minor symptoms (not related to a disease or disorder)

• alternatively it must consist of processed products made from cannabis raw plant material and processed products where only the naturally occurring quantity of cannabinoids found in the source material are contained in the product and which contain no more than 0,001% of THC and no more than 0.0075% total CBD.

The “cannabis products” we see available in stores therefore contain CBD or hemp, and should comply with the standards set by the Minister of Health. Due to the low levels of THC in these products, they are unlikely to affect your mental faculties.

Within the trade mark context, previously applications containing any reference to cannabis were deemed contrary to law or contrary to public policy or morals and did not qualify for registration. In light of the CC judgment, this position has now changed. In August 2019, the South African Trade Marks Office published updated Guidelines On The Examination of Trademark Applications. According to these guidelines, cannabis-related trade mark applications will now be accepted on condition that the Applicant undertakes that the products comply with the standards set by the Minister of Health. Non-compliance with these standards would render the sale of the product and its trade mark application(s) contrary to law.

Whilst the sale of cannabis itself (whether recreational or medicinal) has been legalised in jurisdictions such as Canada, South Africa has a long way to go. We are confident that as public policy in South Africa continues to evolve, and given the huge market potential associated with the cannabis industry, South Africa will make strides in this regard. It is anticipated that in the near future more legislation and guidelines will be passed, weeding out the old laws. This will ensure adherence to legal standards and the general regulation of the cannabis industry. It is certain that this newly tapped CBD and hemp market in South Africa will result in more cannabis-related trade mark applications being filed. If this market is of interest to you, safeguard your rights and protect your trade marks as soon as possible!

Reviewed by Manisha Bugwandeen-Doorasamy, a director in ENSafrica’s Intellectual Property department

Ferosa-Fae Hassan
associate | IP
+27 79 445 4606