It’s been a few years now since California legalized recreational possession of marijuana. However, despite the fact that it’s been more than a decade since recreational users could “light up,” intellectual property laws surrounding cannabis have been slow to follow. Notwithstanding the uncertainty of the legal landscape surrounding cannabis IP, there appears to be another related concern on the horizon as California lawmakers have begun the push to legalize the recreational use of other substances—namely, psychedelics. 

Senate Bill 58 (“SB 58”) is landmark legislation that would make certain psychedelic drugs legal for recreational use. And, while SB 58 made it through both legislative bodies, Governor Newsome vetoed the bill in early October. Still, the fact that SB 58 made it as far as it did lends support to the idea that the legalization of certain psychedelic drugs may be in the near future. What this means for those interested in obtaining IP rights to various substances and strains remains to be seen, but it is certainly something to keep an eye on. 

What is SB 58?

California Senate Bill 58, introduced by Senator Scott Wiener, was a significant legislative effort aimed at decriminalizing certain hallucinogenic substances. This bill was a follow-up to Senator Wiener’s earlier psychedelics decriminalization legislation, SB 519, which had passed the Senate but stalled in the Assembly Appropriations Committee.

The core objective of SB 58 was to decriminalize the possession and personal use of specific psychedelic drugs. The substances included under this bill were psilocybin, psilocin, Dimethyltryptamine (DMT), mescaline (excluding peyote), and ibogaine. The bill was motivated by research from top medical universities indicating the potential benefits of these substances, particularly in treating mental health and substance use disorders. Such research includes clinical trials demonstrating the efficacy of psilocybin in reducing symptoms in patients with treatment-resistant depression and its potential to aid smoking cessation, among other benefits.

SB 58 was seen as part of a larger movement to end the so-called “War on Drugs,” aiming to replace policies that led to incarceration for drug use with more therapeutic and rehabilitative approaches. The bill garnered support from a broad coalition, including combat veterans, reflecting growing advocacy for alternative mental health treatments, especially among populations like veterans suffering from PTSD.

The legislative journey of SB 58 involved several rounds of review and amendments. It passed through various committees in the Senate and Assembly. However, despite passing in both houses, the bill was eventually vetoed by Gavin Newsome, the Governor of California. The process for a bill like SB 58 to become law involves multiple readings and approvals by both the Senate and Assembly and ultimately requires the Governor’s consent. A veto from the Governor can only be overridden by a two-thirds vote in each house.

The bill’s veto represented a significant setback for advocates of psychedelic drug decriminalization. However, it also highlighted the ongoing debate and evolving perspectives on drug policy, particularly concerning substances that have been shown to have potential therapeutic benefits.

Can You Patent Illegal Drugs?

Yes, while some countries do not allow you to patent something that is illegal to possess, the United States does not impose such a restriction. Thus, U.S. patent laws apply to illegal substances just as they do to legal ones. For example, although cannabis is considered a Schedule I drug with “no currently accepted medical use and a high potential for abuse,” the U.S. Patent Office will still accept—and approve—utility, design and plant patent applications for all types of cannabis-related IP, such as:

• Cannabis processing techniques, 
• Cannabis processing machines, 
• Manufactured cannabis products, 
• Cannabis compositions, and
• Strains.

Thus, while psychedelic drugs remain illegal in California and across the United States, that won’t prevent the U.S. Patent Office from issuing patents, provided they qualify. 

Are You Considering Entrance into the Cannabis or Psychedelics Business?

If you are interested in learning more about the patent application for cannabis plants or harvesting techniques or machinery, or if you’re optimistic that psychedelic drugs will be included in the next push for legalization, reach out to the Cohen IP Law Group for more information. At Cohen IP, we have a dedicated team of IP attorneys who regularly handle matters relating to copyrights, trademarks, and patents. We have secured over 2000 patents and trademarks on behalf of our clients and look forward to discussing your goals and how we can help you achieve them. To learn more, and to schedule a confidential consultation today, give the Cohen IP Law Group a call at 310-288-4500. You can also connect with us through our secure online contact form.