The Whole Package: Karen Bernstein's Tips For Cannabis Brand Building

By Jill Goldsberry

Who Is Karen Bernstein? A Leading Intellectual Property, Trademark, And Cannabis Attorney

If you want to know all about cannabis branding and packaging, ask Karen Bernstein. Not just because she’s one of the nation’s leading Intellectual Property and Trademark law experts, but also because her practice with cannabis clients has shown her the quagmires the industry now struggles with regarding product regulations.

*Attorney Karen Bernstein (C) The Law Offices of Karen J. Bernstein, LLC*

“It would be nice to have harmonious regulations,” Bernstein says. “For packaging, you do have to go and look at each state’s regulations, which is why it’s such a pain. [If only] we had a uniform set of packaging and labeling guidelines… If [your product is] in multiple states, you have to make sure you’re complying within those states… And presently they’re all different.”

The Managing Partner of the Bernstein IP firm in New York City, Bernstein spends a lot of time interpreting packaging and compliance regulations for clients. She also currently serves on the Executive Committee of the New York State Bar Association’s Cannabis Law Section, where committee members are often responsible for making comments on Office of Cannabis Management (OCM) regulations before they are finalized. In addition to Bernstein’s long list of accomplishments - she had a noteworthy career in music and advertising before becoming an attorney - she is an award-winning writer, works with recognizable celebrities and brands in her legal practice, and has solidified her reputation as a formidable cannabis authority, having chaired the National Cannabis Industry Association’s Packaging and Labeling Committee, and been a twice-elected Director of the Board for the International Cannabis Bar Association.

What Are Karen Bernstein's Suggestions For Launching Cannabis Brands In New York?

Today the trailblazer has substantial advice for those seeking to launch cannabis brands in New York’s adult-use market.

Consider investing in a Type 3 processing license.

“New York’s regs are very restrictive on who can do what we call white-label licensing,” she explains. “If you want to enter into a white-label or brand licensing deal, you have to already have a cannabis license or be [financially involved as] a true party of interest. The only other way is a special Type 3 Processing License, and basically it’s $2000 to have a brand and do brand licensing. So if you were a celebrity like [Wiz Khalifa or the Marley Family], you would have to get a Type 3… You wouldn’t be able to just come in and endorse a brand.”

Unlike other licenses, there’s no cap on the Type 3, but the queue to get one remains long. While Bernstein’s firm works with numerous clients seeking such a license, she predicts the regulations on it will eventually change. “Having a processing license for a company, brand or celebrity that doesn’t really want to touch the plant forces them to be involved… I think it inhibits the market.”

Consult an attorney on your product’s packaging.

“They know how to interpret law. And that is the most wise thing to do, because you will need to have certain inch font on the side of your packaging, and if the language is too long, then you have to have an insert into it.”

Use your packaging space wisely.

“Perhaps you have your nutritional information on the packaging [and you’re using] a QR code to lead you to other things like the Certificate of Analysis [which] tells you where the cannabis came from. It may be used for anti-counterfeiting purposes, which my firm also handles.”

Prepare for additional costs to the consumer.

“What’s frustrating to the community is that they’re trying to operate legally, and instead they’re getting beat out [by illicit shops] because they’ve got to pay the taxes on cannabis and that’s going to be a higher price. You’re charging the consumer for legal compliant packaging, legal compliant testing, safer cannabis.”

What Does Karen Bernstein Suggest New York Do To Curb Unlicensed Cannabis Businesses?

As to how to handle those unlicensed businesses proliferating across the state? Bernstein recommends that they can be cut off at the knees if their point of sale systems or credit card merchants can be taken away. Though it won’t stop all the illicit operations, it would significantly limit it.

With New York cannabis constantly evolving, the IP expert looks forward to seeing improved regulations around advertising, which currently prohibits licensed retailers and brands from marketing through certain signage or billboards. “You’re just setting the industry up to fail… Something has to change to be able to allow the industry to advertise.”

Most of all, Bernstein recommends that anyone building IP learn about trademarks. “Your corporate name is separate from your trademarks… If you’re planning to sell T-shirts at your store with your brand name, you may want to consider filing an intent-to-use application in the Federal Trademark Office because clothing doesn’t touch the plant… So if cannabis is ever legalized [nationwide], perhaps having those federal trademarks will help you in the future to enforce your rights, to stop people from using your mark. And it’s recommended because if you build a portfolio of trademarks and intellectual property, it’s an asset of your business.”

For more on Karen Bernstein, visit bernsteinip.com and karenbernsteinlaw.com.

*A version of this article originally appeared on the cover of Honeysuckle's 18th print edition. Click here to order and choose your element - Fire with Bun B or Ice with Queen P!