Hemp – Seeds, Patents, and Trademarks, Oh My.

May 15, 2019

There are three major developments in regards to the hemp industry in the past few weeks.  We are starting to see some of the real world effects of the 2018 Farm Bill.


  1. Importation of Hemp Seeds

The passing of the Agriculture Improvement Act of 2018 (2018 Farm Bill, Section 10113) removed hemp and hemp seeds from the Drug Enforcement Administration’s (DEA) schedule of Controlled Substances. This action removed hemp and hemp seeds from DEA authority for products containing THC levels not greater than 0.3 percent. Therefore, DEA no longer has authority to require hemp seed permits for import purposes.

U.S. producers and hemp seed exporters have requested assistance from the U.S. Department of Agriculture (USDA) to provide an avenue for hemp seed exports to the United States. The USDA regulates the importation of all seeds for planting to ensure safe agricultural trade. Under this authority, USDA is providing an alternative way for the safe importation of hemp seeds into the United States.

Importation of Hemp Seed from Canada

Hemp seeds can be imported into the United States from Canada if accompanied by either: 1) a phytosanitary certification from Canada’s national plant protection organization to verify the origin of the seed and confirm that no plant pests are detected; or 2) a Federal Seed Analysis Certificate (SAC, PPQ Form 925) for hemp seeds grown in Canada.

Importation of Hemp Seed from Countries other than Canada

Hemp seeds may be imported into the United States from countries other than Canada if accompanied by a phytosanitary certificate from the exporting country’s national plant protection organization to verify the origin of the seed and confirm that no plant pests are detected.

Hemp seed shipments may be inspected upon arrival at the first port of entry by Customs and Border Protection (CBP) to ensure USDA regulations are met, including certification and freedom from plant pests.

For more information, see:  https://www.ams.usda.gov/content/importation-hemp-seeds  Questions or requests for information from the USDA  regarding hemp can be sent to [email protected]


  1. USDA Now Accepting Applications of Seed-Propagated Hemp for Plant Variety Protection


The U.S. Department of Agriculture (USDA) today announced that the Plant Variety Protection Office (PVPO) will start accepting applications of seed-propagated hemp for plant variety protection.   The PVPO provides intellectual property protection to breeders of new varieties of seeds and tubers. Implementing the Plant Variety Protection Act, PVPO examines new applications and grants certificates that protect varieties for 20 years (25 years for vines and trees). Certificate owners have rights to exclude others from marketing and selling their varieties, manage the use of their varieties by other breeders, and enjoy legal protection of their work.


Applicants can submit their applications through the electronic application filing system, choosing hemp in the Crop Kind Dropdown box. The ePVP System provides an efficient and secure way to 1) file new plant variety protection applications, 2) amend existing applications, 3) pay fees, 4) check the status of an application, and 5) correspond directly with PVPO staff.


All new ePVP System users must be e-authenticated before being able to use the system. Click on http://www.eauth.usda.gov/ to apply for a USDA eAuthentication Account.

  • Domestic users: Request level 2 access and follow the instructions to establish the account.
  • International users: Request level 1 access only; and upon creating the account, email name and contact information to [email protected] to finalize the account authorization.
  • Once e-Authentication has been completed, applicants can proceed to establish an ePVP

For questions on e-Authentication, logging into the ePVP System and PVPO operation, please e-mail [email protected] or call (202) 260-8983. Information on program requirements, fees and forms is also provided on the PVPO website.


  1. New USPTO Examiner Guide 1-19 regarding CBD and Cannabis related good and services following the 2018 Farm Bill


On May 2, 2019, the United States Patent and Trademark Office (USPTO) issued a new “examination guide” which officially allows trademark registrations for CBD related cannabis products.  The new “examination guide” outlines the circumstances under which CBD trademarks will be allowed now that CBD derived from hemp is federally legal with the passage of the 2018 Farm Bill.


There are some significant caveats though, including that the CBD must be derived from hemp (cannabis with a THC concentration of not more than 0.3%) and must not violate the Federal Food Drug and Cosmetic Act (FDCA), i.e. not be in food, beverages, dietary supplements or even pet treats.   There is a process to get FDA approval which involves controlled scientific testing, but only one CBD containing medication has thus far obtained FDA approval.  Go to this link https://www.fda.gov/news-events/press-announcements/statement-fda-commissioner-scott-gottlieb-md-signing-agriculture-improvement-act-and-agencys to see the FDA’s explanation of their position on CBD containing products and the procedure to seek FDA approval.


While this new access to federal trademark is limited, it is a good start.  We can help you with your trademark issues for hemp products and other items.


As always, if you have any questions specific to your situation or needs, please contact us to set an appointment.