The Oregon psilocybin advertising rules should be interesting. As a matter of law, advertising is a form of “commercial speech”, and the Oregon Constitution’s free speech guarantee is one of the nation’s strongest. In fact, it is broader in scope than even the First Amendment to the U.S. Constitution. Today, we want to cover some of the recommendations on Oregon psilocybin advertising rules to date.
As a reminder, since March 31, 2021 the Oregon Psilocybin Advisory Board has met monthly to develop regulations for the emerging psilocybin industry. There are five subcommittees of the board, which include: research, health equity, manufacturing, training, and licensing. Our own Mason Marks chairs the Licensing Subcommittee.
The Licensing Subcommittee has discussed several topics related to psilocybin services and made recommendations on those topics. “Advertising” in the psilocybin industry is one issue that has received a lot of attention. Advertising psilocybin products and services is important, in order to allow information to assist licensees in reaching potential clients. However, certain advertising may entice vulnerable populations or engage in unethical practices.
In this post we will cover recommendations the Licensing Subcommittee has made to the Board so far.
What Measure 109 says on Oregon psilocybin advertising
Under Measure 109, Section 8 (2)(f) gives the Oregon Health Authority power to adopt psilocybin services advertising rules. However, there has been disagreement among Board members as to whether product advertising is allowed. Some members believe Section 8 of Measure 109 only allows advertising for psilocybin services, while others believe advertising is allowed for both psilocybin products and services. The Board will determine the proper interpretation after further discussion.
In the meantime, the Subcommittee continues to make recommendations on advertising for both products and services.
Licensing Subcommittee recommendations on Oregon psilocybin advertising to date
The Subcommittee acknowledged the eclectic options for advertising and decided to recommend a broad definition of “adverting.” Thus, they made the following recommendation:
Advertising shall be defined as commercial communications distributed through print, television, radio, internet, including but not limited to, websites and social media, signage, and other media that is accessible to the public outside of psilocybin service centers, manufacturing facilities, and laboratories.
The terms “signage” and “other media” include employees holding signs on sidewalks, and even the wacky wavy inflatable arm tube men frequently use on car lots. The Subcommittee also noted a large inflatable mushroom is “signage,” but may be considered targeting minors.
Content and Vulnerable Populations
The Subcommittee held the view that advertising is necessary to inform prospective clients, but not must not mislead the public. Further, Measure 109 only allows psilocybin services for individuals over 21 years old, and only if psilocybin is appropriate for them. For instance, psilocybin services are prohibited for a person who cannot consume psilocybin products due to a medical issue. The Subcommittee decided advertising rules should protect vulnerable populations mentioned in Measure 109. As such, the Subcommittee recommended:
“advertising for psilocybin products or services may not make medical claims or contain statements that are deceptive, false, or misleading, and may not contain content that can be considered to target individuals under the age of 21 or otherwise prohibited from using psilocybin service by these rules.”
There is, however, lingering concern that this rule will overly limit informing the public on psilocybin services.
Nonetheless, the Subcommittee expanded on how advertising could appeal to minors, using Joe Camel as an example of unethical advertising. One can imagine a service center using a cartoon, such as a doe-eyed mushroom with a big smile and exciting colors inviting the public to a service center. Such imagery would surely attract individuals under 21 years old and should be prohibited.
Finally, the Subcommittee noted it is more concerned with client wellbeing than client residence. So, although advertisements may not target minors and vulnerable populations, the Subcommittee recommended: advertisements may target individuals outside of Oregon.
Ethics and Safety
Each facilitator must adhere to the facilitator code of conduct, which we discussed in this post. Facilitators are largely responsible for client safety, so the code of conduct must be held to a high standard. Thus, the Subcommittee recommended: advertising must not violate, or promote breach of, the facilitator’s code of conduct.
Relatedly, advertising new products can be helpful to prospective clients. Hypothetically, an individual may not want, or be able, to consume a psilocybin food product but wishes to consume a psilocybin drink. To allow such opportunities to exist, the Subcommittee recommended: advertisements can explain the safety of new products, as well as a product’s effects and risks.
Consumer-related technology has developed exponentially over the past decade, and the concern for personal privacy is growing with it. For instance, some stores began using bluetooth beacons, which are small electronic devices that collect data on a person’s location and behavior. That data is used to create personalized advertisements for the individuals being tracked. In the psilocybin industry, client privacy is held equally paramount to client safety. Thus, the Subcommittee wanted to limit the influence of bluetooth beacons and related technology. It recommended: advertising may not be based on bluetooth beacons, radio frequency identification, and other location-based technology.
Similarly, individuals using the internet are tracked by the webpages they visit and their general browsing history. Web tracking technologies and third-party cookies collect data for personalized advertisements, and that data is bought and sold by companies to sell products to consumer more efficiently. The Subcommittee thus recommended: advertising may not be based on web tracking technologies or third-party internet cookies.
Future Oregon psilocybin Licensing Subcommittee meetings
These decisions are mere recommendations to the Oregon Psilocybin Advisory Board and are subject to change. The Board will submit its own regulation recommendations to the OHA in June 2022. Over the next several months the Licensing Subcommittee will be finalizing its recommendations for general licensing regulations.
Members of the public are welcome to watch the meetings via zoom and may give comments at the end of each meeting. The next Licensing Subcommittee meeting will be held on February 3, 2022 at 4:00 pm PST. We will be sure to update here on the blog.