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Analysis: New Jersey Employment Law Hits Marijuana Impasse

As medical marijuana legislation has proliferated throughout the United States, the balance between employee and employer rights has been repeatedly visited. Do employers have the right to make employment decisions based on medical marijuana use or is the employee protected pursuant to existing workers’ rights laws? The New Jersey case of Wild v. Carriage Funeral Holdings Inc. analyzed this issue, convincingly deciding that medical marijuana users in New Jersey enjoy employment protections afforded to those using traditional medical treatments.

In Wild, the plaintiff Justin Wild was employed as a funeral director by Carriage Funeral Homes. A few years into his tenure at Carriage, he was diagnosed with cancer and was subsequently prescribed marijuana access by his doctor. Wild never disclosed this marijuana prescription to Carriage. One day while working in 2016, Wild was driving a company vehicle that was struck by another driver who ran a stop sign. Wild was found to not be at fault and his emergency room doctor determined that Wild was not under the influence of marijuana at the time of the accident.

Despite these findings by the doctor, Carriage told Wild that he was required to take a drug test before returning to work. Wild complied but tested positive for marijuana and was subsequently fired. Wild sued Carriage for, among other claims, a claim of a violation of New Jersey’s Law Against Discrimination (“LAD”) in relation to his use of medical Marijuana pursuant to the New Jersey Compassionate Use Medical Marijuana Act (“The Act”).

At trial level, the court granted Carriage’s motion to dismiss stating that The Act does not contain employment-based protections for medical marijuana users and that Carriage acted within the law for dismissing Wild for a violation of their drug testing policies. The appellate court convincingly rejected this decision, changing the landscape of New Jersey Employment Law for the foreseeable future.

The Appeals Court first dove into the intents and purposes of The Act, finding that the purpose of the law was to protect those recieving medical marijuana from adverse consequences, both legally and socially while acknowledging that The Act does nothing to require employers to “accommodate the medical use of marijuana in the workplace.” Despite this language, The Act is silent on employment discrimination in relation to the use of medical marijuana.

While the language of The Act clearly supports that no “accommodation” be made by employers, the court explained that this does not supersede the LAD which clearly makes it illegal to discriminate against an employee with a disability unless that disability precludes them from reasonably performing the duties of their job. The court explained that the two laws do not conflict and actually are intended to work in harmony with the LAD still controlling employment discrimination in the State of New Jersey.

This interpretation of the existing laws means that the inquiry in this case and others that are similar is simply a “question of discrimination” under the current LAD provisions. In justifying their decision, the New Jersey court cited decisions of other states that have laws worded similar to The Act. The court did not decide the case, but rather remanded it back to the lower court to be decided with the newly articulated interpretations.

This new interpretation of the intersection of employment and cannabis law has left commentators torn between two opposite opinions. On one hand, some believe this has cleared the air on an important cannabis rights issue, while others argue that this has made an already murky issue even cloudier. Going forward it appears that a “zero tolerance” apprach to medical marijuana use is no longer legally permissible in New Jersey. Regardless of the result, more court battles are likely as this delicate issue continues to manifest in states with forms of legal marijuana.

Opinion: The USPTO Should Take a Commonsense Approach to Cannabis Trademarks

The current state of cannabis trademarks is murky, as current United States Patent and Trademark Office (“USPTO”) regulations and rules have left the cannabis industry scratching their heads. With uncertainty looming large over the industry, the USPTO should take a commonsense approach in order to provide clarity for a growing industry.

As it currently stands, the USPTO will not grant trademarks related to illegal products. Despite widespread state legalization of marijuana, the USPTO, a federal agency, considers marijuana an illegal product because of its federal prohibition. After the passage of the 2018 Farm Bill which legalized hemp and CBD products containing less than 0.3% THC, the USPTO began granting CBD and Hemp trademarks, but marijuana trademarks remain prohibited. This lack of marijuana trademark protection cuts deeply against sound public policy and furthers no legitimate policy goal.

The United States Constitution explicitly mentions the goal of promoting “the Progress of Science and useful Arts,” but current trademark regulations are doing the opposite. By leaving a multi-billion dollar industry unable to fully protect their brands, opportunities for knock off products to enter the market have been created. Not only does potential brand copying affect business, but it also lowers consumer confidence. Trademarks work to promote brand consistency by giving companies exclusive rights to use their markings, thus alerting consumers that they are receiving what they are expecting. For example, Coca Cola has a well-known brand and logos. When you grab a Coke, you know by the logos on the bottle that you are receiving the product you expect to receive.

With the cannabis industry expected to grow by 450% in the next five years, brand consistency and confidence will likely lag under the current laws. Recently a string of marijuana vapor lung illnesses has damaged cannabis consumer confidence. The majority of these illnesses were linked to vapor products made by black market producers. The USPTO should attempt to raise consumer confidence and can do so through trademark registration. If the USPTO were to adopt measures that allowed marijuana trademark registration on the condition that the company were state licensed marijuana growers and/or sellers and followed all state quality regulations, incentive to produce safe and legal products would be increased while also helping these companies establish their brand.

Although cannabis companies currently cannot fully establish their marijuana product marks on a federal level, there are ancillary measures they can take. First, cannabis companies can utilize a strategy described as “circling the wagons,” wherein companies trademark their logos on other products such as clothing or stickers. By trademarking other product markings, companies can demonstrate that they have protectable subject matter which can help deter other companies or imposters from using their mark on unprotectable marijuana products. If a company utilizes this strategy, they must actual produce and sell the products for which they have obtained a trademark.

Cannabis companies in states with legalized recreational or medical marijuana can also obtain state trademark protection, but this protection tends to be limited. State trademarks usually come with geographical limitations with protection localized to the counties or cities where the company is actually conducting business. State trademarks also can be limited in the remedies available for infringement and also do not allow for tagging on protected marks (i.e. adding a “TM” or ® stamp to a logo).

All of the hassle and uncertainty surrounding cannabis trademarks can be easily avoided if the USPTO took a business friendly, common sense approach to their regulations and rules. Allowing marijuana trademarks is a win-win situation for everyone involved. Companies can attempt to be the Coca-Cola of the cannabis industry, while consumers can be confident they are receiving consistent and safe products which are goals all parties involved should strive for.