An Assessment of the Intellectual Property Regime for the Medicinal Cannabis Industry in Barbados

Clinic: University of the West Indies, Spring 2021

Executive Summary

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Appendix

The value of the medicinal cannabis industry globally is expected to reach US $ 70.6 billion by 2028.* The increased legalisation of cannabis for medicinal use and the growing adoption of these products for the treatment of chronic diseases are the key factors driving this market.** Within the Caribbean region, the medicinal cannabis industry has generated significant economic revenue. Jamaica, as an example has seen trade between medicinal cannabis licensees valued at US$1.34 Million from May 2019-July 2020.*** Following the success of Jamaica, many have followed to establish their own medicinal cannabis industry, including Antigua and Barbuda, and Barbados. Though these industries are nascent, the profitability of the industry has the potential to bring investors to Barbados as a new entrant in the medicinal cannabis market.

Intellectual Property Rights (IPRs), play an important role in the medicinal cannabis industry by granting protection of intellectual property to potential investors and companies. Businesses may seek to gain an advantage by purchasing or investing in companies holding valuable IPRs.**** The key question in this memorandum, is how will the IPRs in the medicinal cannabis industry lead to the promotion of trade and investment for new entrants, such as Barbados. IPRs can be used as a trade facilitation tool. Arguably, there is a direct link between trade and IPRs, as well as foreign investment and IPRs. Both trade and foreign investment through IPRs often attract economic revenue for a State.

The purpose of this memorandum is to assess the IPR regime for the medicinal cannabis industry, and in turn, determine how this regime can promote trade and investment for the Barbadian medicinal cannabis industry. This memorandum will introduce and assess international agreements that are key to the medicinal cannabis industry such as the 1991 Act of the International Union for the Protection of New Varieties of Plants (UPOV) and the Nagoya Protocol. UPOV provides a sui generis form of intellectual property protection, which has been specifically adapted for the process of plant breeding. The Nagoya Protocol is a supplementary agreement to the Convention on Biological Diversity (CBD). It provides a transparent legal framework for the effective implementation of one of the three objectives of the CBD - the fair and equitable sharing of benefits arising out of the utilization of genetic resources.

These agreements may be beneficial to the Barbadian medicinal cannabis industry, by potentially bolstering their IPR regime to encourage the promotion of trade and investment. This proposal to accede to these international agreements will take into account the potential advantages as well as challenges Barbados may face in becoming a party to these agreements. Additionally, this memorandum identifies amendments to Barbados’ Protection of New Plant Varieties Act, and the Drug Abuse (Prevention and Control Act).

* Grand View Research, ‘Legal Marijuana Market Worth $84.0 Billion by 2028- CAGR:14.3%’ (2021), https://www.grandviewresearch.com/press-release/global-legal-cannabis-market (accessed 28 April 2021).

** Ibid, at 2.

*** Jamaica Observer, ‘Trade Between Cannabis Licensees’(2020), https://www.jamaicaobserver.com/news/tradebetween-cannabis-licensees-at-us-1-34-million-says-cla_201917?profile=1470 (accessed 10 June 2021).

**** John Rebchook, ‘Intellectual Property Takes on Growing Role in Cannabis Industry Deals’ (MJBizDaily 2021), https://mjbizdaily.com/intellectual-property-takes-on-growing-role-in-cannabis-industry-deals/ (accessed 28 April 2021).

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Appendix.