Following a judgment by the Constitutional Court on 18 September 2018, wherein the Constitutional Court confirmed an order by the High Court allowing adult South Africans to use, possess and cultivate Cannabis “in private”, there was an influx of applications to register as trademarks, marks incorporating, inter alia, words and signs alluding directly and indirectly to Cannabis. A number of these applications were filed in the food and beverage classes.
Since the Constitutional Court’s judgment reflects a change in the boni mores insofar as Cannabis is concerned and, while South Africans await Parliament’s delineation of the landscape insofar as the practical applications of this judgement are concerned, the South African Trade Marks Registry accepted a number of these applications.
While the food and beverage industry may have anticipated Cannabis-flavoured produce being made available for sale in South Africa, Parliament has published, on 13 August 2021, an amendment to the LPA, prohibiting the addition of Cannabis, as a flavouring to liquor products. This prohibition extends not only to using plant material of the genus Cannabis but also to the use of nature-identical flavourings, extracts or anything derived from plants of the genus Cannabis.
Although this prohibition does not currently extend to beers, since beers are currently classified in South Africa as foodstuffs and are governed by the Foodstuffs Act (which Act is enforced by the Department of Health), this prohibition will, in all likelihood, extend to beer in the future: in a further amendment to the LPA (which Act is enforce by DALRRD), beer will fall within the regulatory framework established under the LPA and its regulations. Although the Amendment Act was published on 17 September 2021, it is yet to take effect and it is unclear, at this stage, from when the amendment will have effect.
From a practical perspective, however, the consequence for breweries is that the current labelling requirements for beers brewed for export to and sale in South Africa may change as the regulatory framework and requirements set out under the LPA are different to the labeling requirements set out under the Foodstuffs Act.
In light of these amendments, it will be interesting to see how the South African Trade Marks Registry will process and examine applications filed in classes 32 and 33 that incorporate the word Cannabis and Cannabis-related insignia.