Somebody once said that advertising is not necessary, unless you want to make money.
Like Washington and Colorado, Oregon will restrict advertising options for marijuana businesses. The Oregon Liquor Control Commission (OLCC) is currently writing advertising rules for Oregon’s recreational marijuana program. The new rules may be similar to the OLCC’s advertising regulations for liquor; or, they may be more like tobacco regulations, another smokable product. Draft rules should issue in late September.
Because marijuana is illegal at the federal level, there are no federal guidelines for OLCC on marijuana advertising, other than the Cole Memo directives to prevent “the distribution of marijuana to minors” and to prevent the “adverse public health consequences associated with marijuana use.” With so little guidance, the burden is on the OLCC to determine how restrictive its marijuana advertising rules will be. It’s safe to say that the rules won’t be as restrictive as the OLCC would like, because Oregon’s Constitution has very strong protections for freedom of expression. These protections are much stronger, in fact, than those contained in the First Amendment of the U.S. Constitution.
Though the OLCC may review tobacco advertising regulations for precedent, the differences between the two substances make for an imperfect comparison. Medical consensus on cannabis is much less settled than for tobacco. The World Health Organization (WHO) considers tobacco one of the “biggest health threats in the world” and 168 countries have now signed the 2005 Convention on Tobacco Control, which contains advertising strictures. The WHO also warns of the acute and chronic health effects of cannabis, yet notes its therapeutic effects and calls for more research. The U.S. government simply believes that cannabis is very very bad for you.
Even if the OLCC cannot curb advertising to any great extent, that does not necessarily mean marijuana businesses will enjoy a marketing free-for-all. Radio and television stations can refuse marijuana advertising dollars and surely many will. Some stations will be opposed to legalization, and others will seek to pacify longtime alcohol sponsors by refusing ads from a perceived competitor industry.
Whatever the regulations say, and however media channels react, it is likely that Joe Camel-type ads geared toward encouraging minors to use cannabis will be barred. Beyond that, even if the rules are permissive and channels host the ads, cannabis companies would be foolish to tout health effects of marijuana ingestion, even for medical purposes, and particularly through smoking. Just last week, the Oregon Court of Appeals upheld a $25 million jury verdict against a tobacco company on behalf of a dead smoker’s family.
Cannabis businesses should remember that Oregon’s pot advertising rules will be designed to safeguard the public, not to protect cannabis companies from liability. Even if an ad is permitted, that does not always mean it should be run. Savvy cannabis business owners will not only read the rules closely but confer with their counsel before making claims about their products.