In one of the most significant shifts in drug policy in decades, President Donald Trump signed an Executive Order on December 18, 2025 ordering the Attorney General to reschedule cannabis from Schedule I to Schedule III.[i] On April 23, 2026, Todd Blanche, the Acting Attorney General, signed an order partially effecting that executive order by immediately rescheduling FDA-approved and state-regulated medical cannabis and setting hearings to consider whether all cannabis should be rescheduled.[ii] Cannabis’ presence in Schedule I put it in the same category as heroin and other drugs that the federal government deemed to have “no currently accepted medical use and high potential for abuse.”[iii] Moving cannabis to Schedule III demonstrates federal government acknowledgement of what has continuously proven true in recent medical research—that cannabis has “moderate to low potential for physical and psychological dependence” and several accepted medical uses. Presuming the rescheduling proceeds, cannabis will be in the same category as Tylenol with codeine, testosterone, and ketamine.

This rescheduling has been challenged by the SAM, Inc., the National Drug and Alcohol Screening Association, Inc. (“NDASA”), and the states of Indiana, Louisiana, and Nebraska in petitions filed in the U.S. Court of Appeals for the District of Columbia, so the rescheduling may be subject to modification or withdrawal.[iv] However, presuming that it proceeds, the rescheduling comes with significant legal consequences, especially in the intellectual property realm. Cannabis growers, manufacturers, and retailers have struggled with how to protect their brands and products in federal intellectual property system that was long hostile to its registration. This new rescheduling opens new doors for these brands, but the old challenges that have restrained IP protection remain. Here, we break down what this rescheduling means for IP owners, particular considerations for Louisiana and Texas, and considerations for IP owners looking to strengthen cannabis IP.

1. Cannabis Patents

Contrary to popular assumptions, inventions do not need to be legal to receive a patent registration through the U.S. Patent and Trademark Office. U.S. patents may be obtained for any invention that is useful, novel, nonobvious, and meets the subject matter requirements for patentability.[v] Though cannabis has been illegal under the Controlled Substances Act (CSA), patentability does not depend on sale in commerce, allowing the USPTO to issue patents for cannabis while not endorsing illegal activity. While exact numbers are difficult to find, at least one researcher estimated the total number of active cannabis patents at 8,719.[vi] In fact, the U.S. Department of Health and Human Services holds a (now expired) patent on cannabinoids as antioxidants and neuroprotectants.[vii]

The problem for cannabis patent holders has been enforcement of their patent rights. Generally, cannabis patents have been enforceable against infringers when the patented technology can also be used with tobacco and other legal substances, but infringement against cannabis-based infringers is more complicated under the “illegality doctrine.” For over a century, American courts have refused to extend their jurisdiction to provide recovery for claims arising from an illegal act. Quoting the U.S. Supreme Court: “[n]o court will lend its aid to a party who founds his claim for redress upon an illegal act.”[viii] Though cannabis legalization has increased across the states, cannabis remains illegal at the federal level, and patent infringement is firmly a federal question.

Thus, to proceed with patent enforcement, a patent holder must be able to extend the patent’s reach to legal substances. In 2023, a California federal court refused to throw out the suit based on the illegality doctrine in Gene Pool Techs., Inc. v. Coastal Harvest, LLC, No. 5:21-cv-01328, ECF 101, 13-14 (C.D. Cal. Nov. 22, 2022). There, Gene Pool accused cannabis competitor Coastal Harvest of infringing multiple patents it held for methods of extracting a solute from a source material. In reviewing the alleged infringing activity, the Court noted “[t]he Complaint’s allegations concerning extraction materials are broad enough to include types of cannabis material excluded from the CSA” namely, hemp. Instead, the California federal court found that the asserted patent claims were not limited to cannabis or marijuana and instead related “more generally to extracting oils or compounds from plants.” The Gene Pool case marked an important step for cannabis IP holders’ ability to enforce their patents provided that the patent could extend to other substances than cannabis—highlighting the importance of careful claim drafting during patent prosecution.

Rescheduling cannabis as a Schedule III opens new patent enforcement opportunities—but only for qualified patent holders. Recreational cannabis remains illegal at the federal level and moving cannabis to Schedule III throws cannabis substances into the pharmaceutical realm. This means that cannabis can only be sold if it receives approval from the Food and Drug Administration, and that sale is restricted to those with a prescription. Rescheduling does not significantly change the landscape on patent enforcement, but it does make it easier for Schedule III operators to enforce the patents in federal court without encountering the same illegality doctrine defenses that challenged prior suits.

2. Cannabis Trademarks

Trademark protection is where the Schedule III change has immediate, albeit limited, impact. Trademark applicants for cannabis related goods and services routinely found their applications rejected on the basis that they had no intent to use the trademark in connection with the lawful sale of goods and services. For that reason, the typical strategy of cannabis applicants has been to file trademark applications for smoking related accessories (e.g., pipes, vape pens) that can be used with legal substances, such as tobacco and certain hemp products, or to apply for merchandise associated with the brand (e.g., apparel, stickers). The thought behind these applications is to secure trademark protection for associated goods or services, and then, when cannabis is legalized, to file trademark applications for the cannabis-based goods or services that refer to the prior registrations to expand the scope of brand protection.

Bringing cannabis into Schedule III will allow for businesses to apply for the cannabis products, but both the nature of the business and described goods and services will continue to be scrutinized. Most states call the documents that allow a patient to access medical cannabis “recommendations” instead of prescriptions unless a patient is prescribed one of the four FDA-approved cannabis products. This distinction comes from Conant v. Walters, 309 F.3d 629 (9^th Cir. 2002) and its progeny, which distinguished medical free speech from aiding and abetting. To constitute lawful use, the sales would need to be in connection with a prescription or one of these recommendations. Operators should note that rules around reliance on existing state regulations may change. The standard for lawful use will change alongside developing medical cannabis regulations.

Businesses operating under a valid state license for medical marijuana sales who successfully register with the Drug Enforcement Administration will have a solid argument that their use in commerce is federally lawful, but recreational cannabis will continue to face the same prior challenges. Applicants should expect that the USPTO will take issue with any description of the goods and services that could be read to imply recreational use.

Proving usage will also continue to be a challenge. To receive registration, the applicant must prove that use of the trademark is in Congressionally-regulated commerce—i.e., interstate commerce. The patchwork of state laws has historically challenged applicants’ ability to establish interstate commerce, and state-based restrictions will continue to complicate the usage landscape.

3. Cannabis Trade Secrets

Trade secret protection is largely unchanged by this rescheduling, as trade secret misappropriation has generally always had actionability under the Defend Trade Secret Act. Like patents, the challenge has been in enforcement of those trade secrets. Rescheduling may, for the same reasons as patents, open broader avenues for Schedule III businesses to enforce misappropriation of their cannabis trade secrets.

4. Impact on Texas and Louisiana Cannabis Businesses

In both states, recreational cannabis use remains illegal under existing criminal laws.

Texas allows low-THC cannabis (up to 1% THC) for specific conditions such as chronic pain, PTSD, TBI, inflammatory disease, and cancer, provided that the patient is registered in the Compassionate Use Registry of Texas and the patient receives their cannabis products using Texas-licensed dispensaries. However, the rescheduling does allow for greater access by researchers, who can conduct clinical trials on cannabis, which may lead to faster, high-quality data concerning dosage, efficacy, and patient outcomes for approved treatment conditions.

Louisiana’s regulation of medicinal cannabis is uniquely positioned to align with the rescheduling, as historically, Louisiana’s medical cannabis regulations have focused on integration with the medical system. Louisiana made history in 1978 by passing Act 725, which legalized medical marijuana for certain limited medical uses related to glaucoma and chemotherapy. While the passage of Act 725 technically made Louisiana one of the first states to legalize medical marijuana use,[ix] Act 725 lacked cultivation and distribution mechanisms, making the law largely symbolic and never meaningfully implemented.

In 1991, an amendment added spastic quadriplegia to the list of qualifying conditions but again failed to provide implementation provisions. In 2015, the Louisiana legislature passed Act 261, which created a framework to grow, process, and dispense medical cannabis. From 2016–2018, the legislature expanded the list of qualifying conditions and established a network of “therapeutic marijuana pharmacies” overseen by the Louisiana Board of Pharmacy. In 2019 and 2021, methods of administration were expanded to include inhalers and vaporizations products and then raw flower. In 2022, primary regulation authority of the program was shifted to the Louisiana Department of Health.

The Louisiana Department of Health maintains primary regulatory authority over the state’s medical marijuana program, while the Louisiana Board of Pharmacy continues to regulate licensed medical marijuana pharmacies. Additional changes have further ingrained cannabis into standard Louisiana healthcare. For example, now, rather than utilizing a strict, closed list of diseases, a physician who is licensed and in good standing with the Louisiana State Board of Medical Examiners may recommend medical marijuana to a patient if, in the physician’s medical judgment, the patient has a debilitating medical condition and is likely to receive therapeutic benefit. This combination of DOH management and provider trust indicate a promising future for federal rescheduling integration in the state.

However, Louisiana Attorney General Liz Murrill joined in an action with the attorney generals of Indiana and Nebraska to oppose the Attorney General Blanche’s rescheduling. But, on Friday, May 26, 2026, Murrill filed a motion to withdraw Louisiana as a petitioner in the proceeding. It is unclear at this time why Murrill chose to withdraw Louisiana’s participation, but persons offering cannabis related goods and services would be wise to monitor further Louisiana action concerning cannabis availability and regulation. On May 22, 2026, Governor Jeff Landry signed into law House Bill 568, which makes use of cannabis while on a property used by a school for any school purpose a felony in Louisiana. Thus, Murrill’s decision to withdraw from the litigation should not be interpreted as a relaxing of Louisiana’s attitude towards cannabis use.

Author note: Much gratitude is given to Victoria Cvitanovic of the Rudick Law Group, who provided substantial knowledge and analysis of the current cannabis regulatory landscape and the Louisiana impact of this rescheduling, and without whom this post would not be possible.

Jessica Engler is a partner practicing in all aspects of intellectual property, data privacy, and compliance, and serves as Chair of Kean Miller’s Data Privacy & Cybersecurity practice. A registered patent attorney, Jessica helps clients protect and maximize the value of their intellectual property through practical, business-focused strategies tailored to their goals. She regularly advises on patents, trademarks, trade secrets, and emerging legal issues impacting innovative and highly regulated industries, helping businesses navigate evolving risks while safeguarding valuable assets.

[i] Executive Order: Increasing Medical Marijuana and Cannabidiol Research (Dec. 18, 2025) (https://www.whitehouse.gov/presidential-actions/2025/12/increasing-medical-marijuana-and-cannabidiol-research/).

[ii] Tony Lange, “Trump DOJ Moves to Reschedule Cannabis, Orders New Expedited Hearing,” Cannabis Business Times (Apr. 23, 2026) (https://www.cannabisbusinesstimes.com/cannabis-rescheduling/news/15823023/trump-doj-moves-to-reschedule-cannabis-orders-new-expedited-hearing).

[iii] “Drug Scheduling,” U.S. Drug Enforcement Administration (last accessed Jun. 8, 2026) (https://www.dea.gov/drug-information/drug-scheduling).

[iv] SAM, Inc., et al. v. U.S. Department of Justice, et al., U.S.C.A. 26-1106, U.S. District Court of Appeals for the District of Columbia Circuit.

[v] 35 U.S.C. § 101.

[vi] Ruth Fisher, “Cannabis Patents,” Quantaa (Oct. 8, 2025) (https://quantaa.com/blog/607-cannabis-patents).

[vii] Aiden J. Hampson, et al, “Cannabinoids as antioxidants and neuroprotectants,” U.S. Patent No. 6630507 (Oct. 7, 2003).

[viii] The Florida, 101 US 37, 43 (1879); see also, Ewell v. Daggs, 108 US 143, 149 (1883).

[ix] New Mexico also passed a medical marijuana law in 1978 called the Controlled Substances Therapeutic Research Act. See https://www.nmlegis.gov/sessions/11%20regular/memorials/house/HM053.html.