Cannabis legislation opens the door for pharmaceutical brands in Argentina

25 June 2020

Study of the protection of cannabis-based products in Argentina.

25 June 2020

In March 2019 the global business around legal cannabis was around 50 billion Euros. Since the 1990s, pharmaceutical industry giants like Sanofi, Pfizer or Merck have included patents and trademarks protecting their discoveries about cannabis and marketable medicines in their IP portfolios.

Today, at the beginning of the third decade of the 21st century, and with a 2030 horizon of more than 75 billion Euros at stake, which makes this industry one of the fastest growing, many questions arise. Lack of inventive step may cause the cancellation of countless patents (which proof thereof is diabolical since very few will admit having researched a substance at the time forbidden in half the globe) while many trademarks can incur in the prohibitions of registration for being allegedly contrary to public order.

With new legislation regulating the use of cannabis-based medicines in Argentina the emerging market is an open playing field for pharmaceutical brands looking to making a mark in Latin America.

This is an excerpt of the article published at WTR written by our colleague Guillermo Alcaraz from H&A Argentina where specifies different policies in Argentina.

After years of patchy legislation and legal contradictions, government authorities in Argentina are beginning to make strides towards establishing a solid regulatory framework for the medical use of cannabis-based products. Although there is still a long way to go, analysis of IP activity in the field reveals that some rights holders are already staking a claim in the emerging market.

Following several years of legal loopholes, in 2017 Law 27,350 establishing the regulatory framework for the medical and scientific research of cannabis and its derivatives was passed in Argentina.

Before the law’s enactment, production of cannabis in the country was limited to cases of self-cultivation to meet the needs of citizens with specific diseases who were authorised through various judicial rulings and thereby avoided criminal penalties.

This gave rise to a number of organisations promoting self-cultivation, but legislative gaps and a lack of quality guidelines meant that the content of some products and their genuine ability to combat health issues was often unclear. In fact, investigations carried out by biochemical and pharmaceutical sciences universities found that some oils marketed as “cannabis oils” had a minimum or null content of cannabinoid – resulting in fraud.

The 2017 law proposes, among other things:

• to create national programmes for the study and research of the medicinal use of the cannabis plant and its derivatives;
• to develop awareness-raising actions;
• to implement promotion and prevention actions;
• to draft assistance and treatment handbooks; and
• to establish research assignments and tasks to investigate, develop and even collaborate with various public and private sectors – an effort that, to date, has achieved poor results, with little evidence of action by the state.

Developing new tools to investigate cannabis and its medicinal application would create a range of opportunities in multiple industries, including pharmaceuticals.

The cannabis plant has a number of components that, when applied therapeutically, can have varying results. However, at present, the law applies to the use of cannabis in cases of refractory epilepsy only. As such, some state and semi-state agencies are leading studies into other components of the plant, which may benefit different pathologies.

The main task of the state in this respect is to create the tools and opportunities for further research, establishing medical education and training programmes for doctors and pharmacists who are not currently qualified in the subject. What is more, Argentina should be looking to establish international agreements with countries such as Canada, which has a considerable body of research on this subject, as well as commitment from the authorities, in order to improve patient access to medical cannabis.

Cannabis oil can also be used for medicinal purposes in sports. Indeed, the World Anti-doping Agency recently authorised the use of cannabis oil to soothe pains and injuries among professional athletes, provided that it does not contain the psychoactive component tetrahydrocannabinol (THC).

This decision has created some interesting opportunities for the pharmaceutical industry.

When it comes to industrial property, there are no restrictions on registering cannabis-related trademarks, other than the general application of Trademark Law 22,362.

Table 1 provides a sample of Argentinian trademark applications that include the word “cannabis” or that refer to the drug through the design of the cannabis plant leaf.

Patentes y marcas de derivados del cannabis en Argentina.

Some of these applications have already been granted, while those filed more recently remain pending. Only one registration, in which only the word “cannabis” is applied for as a trademark with a design in Class 34 (including cigarettes), has been rejected by the Trademark Office on the grounds that it violates morality and proper conduct. The mark would have been submitted for analysis, had it not been appropriate to refuse the application on another prohibition established under the Trademark Law.

In addition, most of the trademarks in the table apply to products in Classes 3 (pharmaceuticals) and 5 (cosmetics) and services in Classes 41 (education) and 44 (medicine) – highlighting the main industries that will need to take advantage of the new legal and social circumstances in order to stay ahead.

While the enactment of Law 27,350 and the authorisation of the use of cannabis in the field of professional sports offer a range of opportunities for different industries, as well as the field of scientific research, the current economic and financial crisis in Argentina will create barriers for IP owners, as much of the authorities’ attention will be focused elsewhere and hence, access to national research programmes will remain limited, with poor promotion and little training for the foreseeable future. This is not helped by the fact that organisations such as the National Administration of Medicines, Food and Medical Technology still have cumbersome and extensive procedures for rendering approvals.

We hope that medium and long-term projects will soon begin; the doors of opportunity are in place, we only have to open them and start pushing to create R&D policies for the use of cannabis in the fields of science and medicine, which in turn should have a positive impact on the field of intellectual property.

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