Marijuana Advertising Under California’s Prop 64

Marijuana advertising lawAs California prepares to vote to legalize recreational cannabis on election day, opponents of Proposition 64 continue to raise concerns that legalization will lead to increased public consumption of marijuana due to Prop 64’s “lax rules on marketing.” These opponents cite to reports, such as the one released by the UCSF Center for Tobacco Research and Education back in February, which claim that marijuana should be regulated in the same way as tobacco due to public health problems associated with marijuana use. On the other hand, proponents of Prop 64 argue that banning marketing of marijuana “would defeat the purpose of legalization, which requires a retail system to defeat the black market.” These parties have been fighting over these issues for a while now, including filing lawsuits against each other’s ballot arguments regarding Prop 64’s true effects on the future of marijuana advertising in California.

To provide some clarity on the matter, “advertising” is defined under Prop 64 to include written or graphic materials, billboards, publications, as well as radio or television broadcasts, while “marketing” is any promotion or selling of marijuana or marijuana products, including sponsoring sporting events and developing products specifically designed to appeal to certain demographics. The potential use of TV ads is a sticking point for Prop 64’s supporters and opponents. In fact, the status of TV ads is also unclear in states such as Colorado, Washington, and Oregon due to the Federal Communication Commission’s (FCC) lack of guidance on the matter. Prop 64 limits ads in broadcast, cable, radio, print and digital mediums to placements where at least 71.6% of the audience is reasonably expected to be at least 21 based on reliable, up-to-date audience data.

Prop 64 also requires the following of any advertisements or marketing by a state-authorized marijuana licensee:

  1. That they accurately and legibly identify the licensee responsible for its content;
  2. That they use a method to confirm age if involving direct, individual communication by the licensee; and
  3. That they be truthful and appropriately substantiated.

Prop 64 also specifically prohibits licensees from advertising or marketing marijuana in the following ways:

  1. On a billboard located on an Interstate Highway or State Highway that crosses the border of any other state;
  2. In a manner intended to encourage people under 21 to consume marijuana;
  3. With symbols, language, music, gestures, cartoon characters or other content known to appeal primarily to people under 21;
  4. On an advertising sign within 1,000 feet of a day care center, K-12 school, playground, or youth center; and
  5. Through free giveaways of marijuana or marijuana accessories as part of a business promotion.

Assuming Prop 64 passes in November, TV ads for marijuana aren’t expected to air in California any time soon. Marijuana will still be a controlled substance under federal law and there is a longtime federal ban against cigarette smoking ads instituted in the Nixon era. Thus, without clear guidance, state broadcasting stations are choosing to stay away from the issue by avoiding marijuana ads. However, independently owned stations seem less hesitant to run the ads and with other options like billboards and online marketing still available, California cannabis companies should be reviewing their marketing campaigns for legal compliance because those ads may soon be reaching a much larger recreational cannabis market.