Registrability of CBD Products in Nigeria

In the past decade we have been seeing a rise on marketing and sale of products containing Cannabidiol (more commonly referred to as CBD), which is an active compound that derives from the marijuana plant.

Marijuana or Cannabis is a mixture of dried flowers of Cannabis Sativa that is most often smoked and is considered a drug by the World Health Organization (WHO). In fact, the Organization states that Cannabis is «by far the most widely cultivated, trafficked, and abused illicit drug. Half of all drug seizures worldwide are cannabis seizures. The geographical spread of those seizures is also global, covering practically every country of the world. About 147 million people, 2.5% of the world population, consume cannabis (annual prevalence) compared with 0.2% consuming cocaine and 0.2% consuming opiates. In the present decade, cannabis abuse has grown more rapidly than cocaine and opiate abuse. The most rapid growth in cannabis abuse since the 1960s has been in developed countries in North America, Western Europe and Australia. Cannabis has become more closely linked to youth culture and the age of initiation is usually lower than for other drugs»[1].

The psychoactive constituent in cannabis is called tetrahydrocannabinol (more commonly referred to as THC) and this is the active compound that produces the “high” from marijuana.

Marijuana has also been increasingly described as to have medical and therapeutical properties, especially the CBD compound. Known effects of its usage include better sleep, reduced anxiety, and pain relieve.

CBD can be found in a very wide array of products such as oils, vapes, gummies, topicals and capsules. But does it work? Yes and No. There is evidence that CBD products can help insomnia and reduce anxiety, however there is no evidence that these are effective in curing cancer: a widespread rumour that leads more people to find answers in alternative medicine instead of traditional treatments such as chemo and radiotherapy. This a sensitive topic and we are, by no means, denying the potential benefits of CBD in diminishing some of the symptoms caused by these serious illnesses and those of chronical illnesses, such as Fibromyalgia. Nevertheless, there is no scientifical evidence to support these bigger claims for CBD usage that are, most likely, just a form of excellent marketing.

This being said: is CBD consumption legal? It also depends, specifically, on where you are in the Globe. There are countries where CBD is legal for recreational and medicinal purposes, other have exceptions for medicinal purposes only and, in some of these, both forms are still illegal.

More companies selling marijuana-CBD derived products are entering the markets and, consequently, we are faced with increased requests for trademark registrations listing such products.

In this sense, when filing a CBD or cannabis derived product we must ascertain if the country allows for these products to be listed and this will directly depend on the specific laws and regulations of each country.

Now, is it possible to register trademarks for products containing CBD? In almost every jurisdiction worldwide one of the criteria for a trademark registration is its lawfulness. In a country where CBD and Cannabis usage is prohibited by law, the likelihood of obtaining a certificate of registration is slim to none.

The Nice Classification lists products containing cannabis, for example: cannabis plants and cannabis, unprocessed, in class 31 and cannabis for medical purposes, in class 5. Cannabidiol can also be found in the list, namely in class 5 as cannabidiol for medical use.

In this sense, when filing a CBD or cannabis derived product we must ascertain if the country allows for these products to be listed and this will directly depend on the specific laws and regulations of each country.

And what about Nigeria? In Nigeria, CBD products can only be used for medicinal or scientific purposes provided that the same meet certain conditions and upon obtaining the appropriate license.

In terms of governing laws and regulatory bodies, the National Agency for Food and Drug Administration (NAFDAC) is the main regulatory agency for food and drug products. Amongst other competences it has the authority to regulate the manufacture, import, export, advertisement, sale, distribution, and use of medical cannabis in Nigeria. Consequently, to sell products containing CBD in this jurisdiction a company requires approval of the NAFDAC.

The National Drug Law Enforcement Agency (NDLEA) and the Federal Ministry of Health are included in the regulating agencies directly responsible for policing the cannabinoid drugs usage, distribution, and sale in Nigeria.

The latter has issued several Acts and Regulations on the subject, namely, the Indian Hemp Act of 1966, the Dangerous Drugs Act of 1935, the NDLEA Act, Cap. N30, LFN, 2004 and the NAFDAC Act.

In Nigeria, the Indian Hemp Act 1966, (a federal legislation), makes the planting, cultivation, importation of Indian hemp an offence.  A sentence of death or imprisonment for not less than twenty-one years is prescribed, upon conviction, for a person who knowingly plants or cultivates cannabis in Nigeria. The Act defines Indian Hemp to include «any plant or part of a plant of the genus cannabis». The above provisions and prohibition are however expressed to be subject to the provisions of the Dangerous Drugs Act 1935.

Part V Section 12 of the Dangerous Drugs Act 1935 authorizes import of Medicinal Cannabis in Nigeria, subject to such conditions as to be granted by the Minister of Health. Hence, Indian Hemp, a common cannabinoid drug is legal and registrable under Nigerian law for medicinal purposes only. The use of medical cannabis is subject to the following conditions:

1. License must be obtained from the Minister of Health, for importation of cannabinoid drugs; and

2. Cannabidiol drugs must be registered with NAFDAC prior to their manufacturing, importation, advertisement, sale, or distribution in Nigeria.

The same procedure and the documents required to be submitted for registration will apply under the food or the drug category. Irrespective of the product to be registered, NAFDAC would only issue a registration number and certificate after the product has passed the quality and standard test carried out by the agency.

Any company involved in the production, manufacturing, and distribution of food, imported foods, drugs, the export of semi-processed food and cosmetics must incorporate a company with the Corporate Affairs Commission (CAC) before registering its company product with NAFDAC.

It is also important to note that some products can be registered with NAFDAC without obtaining the NAFDAC Registration Number. For NAFDAC registration of foreign products without the acquisition of the NAFDAC registration number, an import permit must be obtained.

It is important to note that the costs for NAFDAC product registration are usually dependant on specific products to be registered. There are various prices for categories of products. Some of the specific costs an applicant is required to pay include the cost for product registration itself, import permit and inspection where applicable.

Generally, Cannabis (Indian hemp, marijuana) and its chemicals are illegal in Nigeria, the importation or exportation of Indian hemp is an offence punishable with imprisonment for not less than 21 years and without an option to pay fine. However, medical preparation of Indian hemp is exempted and lawful, so far as it does not contravene the Federal Law known as the Dangerous Drugs Act, 1935, the importation of Medically prepared Indian hemp is legal and lawful in Nigeria, subject to registration with NAFDAC and obtaining license from the Minister of Health. These conditions must be strictly followed, prior to the manufacturing, importation, advertisement, sale, or distribution of cannabidiol drugs in Nigeria.

Currently we do not have precise guidelines to ascertain the registrability of trademarks for products containing CBD and Cannabis, but it seems the Trademark Office is accepting these applications (for example: trademark no. F/TM/O/2019/152770 – MOHAWK, applied in class 34 including products such as «cigarettes derived from hemp containing less than 0.3% THC, cannabis, cigarettes containing cannabis (…)»; and trademark no. F/TM/O/2019/160541 – VELO, applied in class 5 including products such as «hemp extract products, CBD oil, dietary preparations containing CBD oil (…)». Which leads us to believe that if the list of products of the trademark complies with the Acts and Regulations for Cannabis and Cannabidiol and it falls under the exceptions referred herein, the Trademark and Patent Office will not refuse a trademark registration for this reason.

Alternatively, generic terms can be listed to protect products containing CBD (supplements, oils, extracts), but sale, import, export, and distribution will always be dependent on previous approval by the competent bodies.

Nevertheless, we advise our clients to seek assistant before filing a trademark listed for these products as to ascertain its registrability.

We are happy to assist with the application of the requisite licenses for the use of the product from NAFDAC and the office of the Honourable Minister of Health as required by law as well as assistance on trademark registration for products containing CBD and CBD derived substances.

[1] https://www.who.int/teams/mental-health-and-substance-use/alcohol-drugs-and-addictive-behaviours/drugs-psychoactive/cannabis, as consulted by the authors on the 1st of June 2022.