Omar Figueroa is a highly notable figure in cannabis law. Since 1998 he has “provided legendary legal representation to hundreds of peaceful human beings facing incarceration for cannabis-related felonies.” When Prop 64 passed in California, he started providing guidance as companies made the transition to a legal market. He is the author of two important legal reference guides: “Cannabis Codes of California: Legalization Edition” and “California Cannabis Laws: MAUCRSA Edition”.
He is highly respected in his field and often quoted by the media. He speaks at events like The Emerald Cup and Cannabis Law Sessions.
In March, Mr. Figueroa was a panelist at the World Cannabis Conferences Panel “U.S.—From Leader of the Anti-Drug War to Cannabis Multi-National”, which took place at this year’s Spannabis cannabis expo in Barcelona. Omar educated the international audience about many of the nuances of “legalization” in the United States.
Mr. Figueroa shared valuable insights about how the industry has evolved from the wild west to a regulated environment, and how his clients are dealing with the ever-changing landscape in California. He believes federal legalization could happen in the next five years, and he defended the U.S., saying that while “America deserves no praise as it invented and exported the drug war, it is only fair that the end of prohibition starts in this cradle of repression.”
I was lucky enough to catch up with him after the panel for a short conversation about the cannabis laws cape and to discuss some of the regulations, as well as the future of the cannabis industry. Here are the results of our cannaversation:
JAMES LONGSHORE: What is your focus these days? What are the big battles you are fighting?
OMAR FIGUEROA: My focus now is cannabis regulation and intellectual property. The big battles coming up ahead are getting federal trademarks registered. Also a lot of litigation is coming down the pipe for the cannabis industry in California. And another battle that I’m interested in as an activist is psilocybin legalization. It looks like there might be an initiative in California in 2020 to re-legalize psilocybin.
That’s funny because during the conference I was thinking, “What are the anti-drug warriors are going to do now when cannabis is legalized at a federal level?” They’re going to up the enforcement on other things, they’re going to come after LSD, they’re going to come after mushrooms, they’re going to come after the stuff that’s still on Schedule I because they need something to do.
That is true.
A lot of people don’t think of IPs when they think the cannabis industry. What would be some examples of those IPs that people are rushing out to register or trying to protect? It’s not a movie or a song which people usually associate IP’s with.
One example is trademarks. In California now you can register cannabis trademarks where the category is dried herbs for smoking— namely cannabis—and that is like a statewide registration so right now there’s almost like a land rush in California with all the companies trying to register the state trademarks.
Another example of intellectual property is patents, and now there are actual utility patents issued for new varieties of cannabis. There’s a company called The Biotech Institute that’s obtained three patents and they’re working on getting more. So far they have not initiated patent infringement litigation but there’s fear that they could be a sleeping giant.
A lot of litigation down the road.
Yes, they are just patiently accumulating a huge patent portfolio and then later will demand licenses.
These IP’s, these trademarks, are being registered at state level or federal level?
At the state level and also at the federal level. So what many companies . . . [will] do is produce a product that is not cannabis. They can get a federal trademark for that product in an adjacent category. So, for example, dried herb for smoking, you’ll take something that’s made out of mullen and sage and other smoking herbs. Get a federal trademark for that and then nobody else can get a trademark for dried herbs for smoking with that same name. So it’s a way to kind of occupy, to plant a flag in the trademark game.
This leads me to another question: Advertising. Once you have an IP, you want to advertise. I know there are a lot of advertising restrictions. What are they? How do you feel about them? What are your thoughts on that?
Well, California does have many restrictions on advertising. Some of them are kind of vague, like, “It’s not intended to appeal to children”. And that is so vague because anything that appeals to humans probably appeals to children. So they have some of those prohibitions.
They also have another one, that the audience composition has to be a certain percentage, 21 and over. So that is basically, in my opinion, it’s like, full employment at audience composition metric firms to always be making sure it’s an adult audience being exposed to this advertising.
In California they are also prohibiting cannabis billboards within 15 feet of the state border. They don’t want a cannabis store advertising as you’re crossing.
Interesting, because, for example, besides journalism in the cannabis sector, I also write comics and films involving cannabis, and I’ve run into this problem. There is a film festival now that is asking that all performers in the films give I.D. and are over 21 years of age. That seems like a little backdoor censorship to me.
That is kind of odd, yeah. It’s a cannabis film festival?
Yes. It’s the first year. It’s in four cities simultaneously.
I can see the rationale for that, which would be that federal law provides sentencing enhancements for any distribution to minors with cannabis, so maybe they are trying to stay out of the enforcement hot zone by not having anyone who’s under 21. I’m not aware of a specific law that says you can’t really do that, but maybe it’s part of not appealing to children.
That’s where it becomes a grey zone, because what if you have a ten-year-old who is part of the story but he doesn’t have any interaction with cannabis whatsoever?
Yes, like if you’re depicting a mom having a stressful day with her children, that might show children as part of the story, but the point is after a stressful day the mom will ingest maybe some low-dose cannabis instead of having a glass of wine and have a similar experience that’s very therapeutic, but doesn’t have all the ill effects of wine. Wine, alcohol has a lot of calories. . . there’s many things.
Like you said, most things that appeal to children, appeal to human beings. The cannabis industry has always been a little about overgrown kids. We like to watch cartoons, things like this. So the cartoon advertising, how do you feel about that? Is that putting limits on someone’s free speech?
Yes, that’s banned in California. I had a client who had a silhouette that was cartoon-like but wasn’t a cartoon, and they were having problems because even though they’re advertising a silhouette [that] wasn’t a cartoon and technically wasn’t prohibited, there were distributors and retailers who refused to accept the product on the theory that a regulator who doesn’t really understand the fine points of the regulations will come in and say this product is not fit for sale.
It becomes a market issue.
Yes. So what that’s created is a very sophisticated adult branding for cannabis, which is awesome.
I went to the Unified Wine & Grape Symposium two years ago. I was invited to speak because they were interested in the cannabis world. This was a huge wine expo in Sacramento and I thought “Wow, look at all this labeling, look at all these beautiful wine labels! It’s going to take the cannabis industry decades to catch up to this!” Well, not in the least. In one year, two years, packaging of a lot of the industry’s brands is so sophisticated that it surpasses the fancy wine bottle packaging.
An exciting example of that, that I think would appeal to a New York sensibility, is Garden Society, which is a Sonoma-based brand. I think their branding is completely spot-on. Very adult, tasteful, sophisticated and understated. It’s not blinged-out weed. It’s appealing to a more mature demographic looking for a different cannabis experience. It’s not about losing your mind. It’s part of your daily wellness routine.
That’s good. You mentioned New York, and specifically, what are your thoughts on the emerging cannabis legalization in New York City and what direction the industry is going? What do you have to say about that?
It’s big bucks. I think [recently] the New York legislature, both chambers, included cannabis legalization in the budget. So I think legalization is going to happen sooner or later in New York, and when that happens we’ll have California and New York, your two most populous states, with legal cannabis. After that, Texas will be next.
Wow. You think?
Yes. I think once New York becomes legalized and people are able to have positive experiences with cannabis and the New York financial sector, which already uses cannabis, can invest in cannabis, then there’s going to be a big impetus for federal banking reform, federal tax reform and maybe straight-up federal legalization.
There is also a risk that some of these pharmaceutical companies that have invested millions of dollars getting their FDA-approved licenses may oppose de-scheduling and may argue for re-scheduling—from Schedule 1 to Schedule 2—and basically giving themselves a monopoly on the research and on use of cannabis.
And what’s the best way to fight that?
Get the word out. De-schedule, not re-schedule. Most cannabis activists think cannabis should be taken off the schedule. It shouldn’t be re-scheduled. Whenever somebody says re-schedule, you have to reframe the issue as de-schedule. It shouldn’t be scheduled in the first place. It’s not a matter of Schedule 1 to Schedule 4, because that would still require a prescription. I guess at a certain point it could become an over-the-counter drug, but then it becomes totally medicalized.
Cannabis is more than that. Cannabis is a therapeutic herb that also has religious and spiritual uses that the law has yet to recognize in the United States, fully. There is a legal defense that is recognized for Rastafarians, for personal use only, in federal court, but not really for any others.
Before we parted ways, I asked Omar, as I ask every cannabis crusader, why he fights for the plant’s rights and how he ended up practicing cannabis law. He told me it’s because he is forever on the search for beautiful, mouth-watering, dreamy buds and his clients brought him jars of them, just as a tip. That was when he knew this was the field for him!
It’s nice to know the movement has passionate advocates like Omar Figueroa on its side!