Federal and state regulations on marijuana advertising are murky – and there can be possible repercussions both for cannabis corporations and publishers of that material. Social media giants aren’t likely to open themselves up to federal or state regulatory action if they can avoid it, especially when they can do just fine without the income.

Specific legal strategies should be formulated in close coordination with your cannabis company attorney (and if you don’t already have one, in this industry, you should get one). Generally speaking though, there are a few ways you can capitalize on social media marketing – if you’re careful. This is especially true considering these platforms are evolving to require more “pay-to-play” advertising, rather than putting as much emphasis on organic likes or hits.

Paid boosts may be treated differently than organically viral content, but the truth is cannabis marketing is still a very gray (and green) area of law. Further, many social media platforms outright ban advertising by cannabis companies. In some cases, ancillary marijuana businesses and even CBD marketing is prohibited too. This is likely to continue despite a turning tide of state-level legalization, so long as the drug remains illegal under federal law.

What Types of Cannabis Advertising is Allowed?

Generally speaking (and again, it’s a good idea to talk to your lawyer first), there are some allowances for:

• Billboards;
• Television;
• Print.

But there are strict caveats – and keep in mind, the rules can evolve quickly without much notice. Billboards offer one of the few forms of marijuana marketing that are more often allowed, but local and state laws will come into lay. Companies will need their licensing already in place, and it’s possible both the municipality and billboard owner will have a say in not only whether it’s allowed but what the sign can say.

The rules for television can be similar, and sometimes require a certain percentage of the population to be over the age of 21. Print ads too work in much the same way. The good news about the latter is that there are a growing number of trade and industry publications, which can provide an important advertising space for your materials. It’s still a good idea to check with an attorney, because here again, local and state laws can come into play.

What Type of Ads are Forbidden?

For the most part, neither Google nor social media outlets like Facebook or Twitter will allow paid-for advertising, as these companies adhere to federal law.

Google, for example, bars certain marijuana-related keyword terms, but those associated with hemp are mostly allowed. If you’re going to run a Google Ads campaign, you’ll want to check with a cannabis lawyer in Los Angeles to make sure your piece meets all the required terms and conditions.

Social media platforms present some of the most challenging ad spaces because you know they would yield high return on investment. Yet because of federal law, social media policies strictly prohibit certain kinds of advertising related to state-legal cannabis sales.

Facebook especially has gotten vigilant in reviewing advertising content. The platform also distinguishes between restricted content and prohibited content – and cannabis falls into the latter section. Snapchat has a whole provision in its terms of use that bars “glamorizing drug use.” It’s a fine legal line to walk.

That said, you can usually have a social media account associated with your business, post about your company and services and hope to generate some hits organically in social media feeds. Even if you know you’d reach a wider audience with a boost, our marijuana lawyers often urge caution because the last thing you want is your account to be taken down entirely.

If you have an above-board cannabis business with a good product, your best bet is often to stay focused on organically-cultivated audiences. The Los Angeles CANNABIS LAW Group represents growers, dispensaries, ancillary companies, patients, doctors and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Snapchat and Twitter cannabis ads risk government crackdown, July 31, 2019, MarketWatch

Just like tobacco and alcohol, the cannabis industry has a number of restrictions about how it can be advertised and marketed. Running afoul of this can be expensive, potentially embarrassing and could cost you business. There are state advertising laws that must be considered, with some regulations specific to the cannabis industry. On top of that, you have to consider the platform. Popular social media apps like Instagram and Facebook have specific terms of service use that don’t allow advertising of “criminal activity” – and marijuana is still a Schedule I controlled substance under federal law.

California cannabis shop owners and dispensary operators have been dealing with this sort of thing for some time now, but in Maryland, they’re just starting to face down some of these challenges. The Washington Post recently detailed the struggles of a fledgling marijuana dispensary owner who started with a dream and a little cash and a bit of social media savvy. Marketing on Instagram would be a great way to reach her target audience. She went for it – and it was wildly successful. Customers followed for the latest “Waxy Wednesday” promotion or educational captions on interesting photos, such as the “Featured Flower” she posted regularly. And then – all of it was deleted. Instagram abruptly announced the account violated its complex terms of service. Hundreds of hours of work were lost – and the marijuana business owner suddenly had no way to reach the following she’d worked so hard to build.

Laws on Mass Marijuana Marketing

Let’s start at the federal level. First, there is the possible risk of prosecution for marijuana advertising under the Controlled Substances Act. 21 U.S.C. section 843(c) bans placement of written advertisements for marijuana and other controlled substances in any newspaper, magazine, handbill or other publication knowing it is done with the purpose of seeking or offering unlawfully to receive, purchase or distribute marijuana. … Soooo… Does that mean you can’t advertise? Not exactly. The measure is seldom-enforced, but it does mean that you’ll need to proceed with appropriate caution.

Media outlets are protected to an extent under the Rohrabacher-Blumenauer amendment to a 2014 federal spending bill, which essentially blocks the U.S. Justice Department from interfering with medical marijuana programs that are legal under state law. It has to be renewed each fiscal year – and it was in the most recent, thankfully undermining then-U.S. Attorney General Jeffrey Sessions’ efforts to once again prosecute state-legal pot shops on all kinds of offenses. However, this protection extends only to medical marijuana programs. Commercial marijuana businesses – and the mediums that publish their ads – are guaranteed no such protection.

As Los Angeles marijuana business attorneys can explain, this is why you’re seeing reticence from large social media companies like Facebook and Instagram. Facebook, for instance, has a policy that bars content or advertisements that promote the use or sale of unlawful prescription or recreational drugs.

There are a fair number of opportunities on social media platforms for ancillary industry firms, like labs or lawyers. As we do at The Cannabis Law Firm, content is focused on education. However, Los Angeles marijuana businesses marketing direct weed sales to customers usually won’t be able to advertise at all there (or at least for long).

In California, marijuana businesses will want to refer to Proposition 64, Chapter 15 Advertising and Marketing Restrictions. Section 26151-26155 explains details a laundry list of criteria for those who want to advertise marijuana products or businesses. It’s worth a look if you haven’t ventured there already. We won’t list every provision here, but essentially, you have to make sure your ads are on digital/ broadcast/ print platform where an adult audience over 21 is reasonably expected. Ads can’t pander to minors or be within 1,000 feet of certain places where minors are, like daycares, schools or youth centers. Advertisements must be truthful and they can’t offer giveaway promotions. If your ad is displayed inside your place of business not easily visible to the public or those under 21, these restrictions won’t apply.

Los Angeles Marketing and Ad Consulting Attorneys Can Help

If you want to give it a shot, you will want to consider contacting a marijuana attorney first. We have a number of resources to help you maximize your ability to reach your customer base – and do so legally. Some tactics may include:

• Contracting with a content or ad agency that is marijuana-specific. You’ll want to be confident they understand the laws, aren’t going to run afoul of them and cause you to lose your investment and hard-earned online customer base.
• Reaching out to social media influencers and brand ambassadors can be a good promotion tool also, but again, you’ll need to be strategic.
• Tailoring your content to be more educational, rather than blatantly sales-driven.
• Diversifying your online presence so that if one page or account does get shut down for some reason, you’ve still got a backup channel to customers.

Note that none of these measures will guarantee your page/ account/ ads won’t face scrutiny or end up erased, but it may give you a better shot.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Marijuana education or illegal drug-selling? Instagram’s not sure, Dec. 7, 2018, By Steve Thompson, The Washington Post

More Blog Entries:

Pall Cast Over Hemp Win as FDA Dubs CBD Products Illegal, Dec. 24, 2018, Los Angeles Marijuana Advertising Lawyer Blog