Marijuana Advertising

We’ve all seen the billboards in Seattle, advertising for cannabis products. Given the guidelines provided in the I-502 legislation, are these billboards legal? 

Most current cannabis advertising is for medical – and not retail – products.  Requirements are not consistent across the marijuana industry, although a number of bills were under consideration during the 2014 session of Washington’s state legislature.  Until decisions are made regarding the future of medical marijuana in Washington State, marijuana advertisements will continue to have differing restrictions. Clearly this is a source of confusion for new I-502 licensed recreational marijuana businesses.

Not all advertising is prohibited for recreational marijuana businesses; it’s just subject to greater limitations than medical marijuana products. Recreational advertisements must not:

• Be false or misleading
• Promote over-consumption
• Make therapeutic claims
• Depict children or attempt to appeal to children
• Be within 1,000 feet of a sensitive area (see the locational rules)
• Be posted in or on public property, including public transit vehicles or shelters

And finally, all recreational marijuana product advertisements must include the standard four marijuana health disclaimers:

This product has intoxicating effects and may be habit forming.
Marijuana can impair concentration, coordination, and judgment. Do not operate a vehicle or machinery under the influence of this drug.
There may be health risks associated with consumption of this product.
For use only by adults twenty-one and older. Keep out of the reach of children. 

Permitted Advertisements

Online advertising – from product websites to banner ads on industry pages – is allowed, though online sales are not. Social media – from dominant players like Facebook or Twitter, to industry-specific marijuana finders – are all acceptable forms of connecting with customers.  Use of YouTube or other video sharing websites to post promotional videos is expressly permitted by the LCB, but businesses are cautioned to avoid material that would appeal to younger viewers, and to exclude viewers under the age of 21 if possible.  This translates to an extra caution for posting on YouTube, which permits age restriction to 18+ only.

Businesses must perform due diligence to ensure they take all precautions to limit online traffic to adults, and to deter minors. Easy steps are to add an age verification key to a business website, and to monitor the site of origin for incoming traffic.  Any online advertising must also contain the standard four marijuana health disclaimers, as detailed above.

Traditional advertising options can be complicated, but are generally allowed.  Stores may include flyers or brochures with a purchase, and supply customers with branded shopping bags. Ads in newspapers or other printed media intended for adults are fine. Direct mail and e-mail marketing are allowed, though they may not feature coupons or discounts. Broadcast advertisements on radio or TV are theoretically permitted, though they might be questionable under current FCC regulations, and near-impossible to segregate from a minor audience.  Sign wavers wearing provocative or eye-catching costumes may be permitted – depending on local ordinances – but businesses should take care, once again, to make sure they are not appealing to children and that  mobile advertisements do not encroach on the 1,000 foot rule. 

Merchandising

Marijuana businesses not only want to promote their brands, but also profit from promotional sales.  The problem is this:  the rules for marijuana producers, processors, and retailers (WAC 314-55-075, 314-55-077, 314-55-079) expressly prohibit the sale of anything other than marijuana, and, in the case of retailers, marijuana and marijuana paraphernalia. The solution? Many licensed marijuana businesses have created and licensed a separate merchandising company with Washington’s Secretary of State. This secondary company does not seek to produce or sell marijuana products through the Liquor Control Board, but exists solely to produce and sell materials that promote a licensed marijuana business.  These merchandising products, mostly apparel and souvenirs such as t-shirts, hats, bags, glasses, coasters, etc., may not be sold or given away in a recreational retail store, but they can be sold at non-marijuana stores or provided to bars or other adult venues.  

Because this arrangement is complicated, we must emphasize the following:
Licensed marijuana retailers are not allowed to sell anything but marijuana products and paraphernalia. Paraphenalia is in a class of its own:  it may only be sold by retail stores, and it is the only non-marijuana swag that retailers can sell.