Even though cannabis is now a $17.5 billion industry in the U.S., it still remains federally illegal and as such is saddled with a host of advertising restrictions — so avoiding trademark infringement is only the beginning of potential roadblocks. As the promotional push of the 2021 holiday season approaches, it’s a good time for a brief review what advertisers can and cannot do to get their stories in front of consumers.
First off, the “duopoly” of Google and Facebook/Instagram are still off limits to cannabis advertisers — and that includes CBD. Google prohibits all “marijuana” advertising (including headshop accessories), and is hyper-vigilant with enforcement. Of course, advertisers can still assure they’re found on Google through smart use of search engine optimization tactics.
Facebook and Instagram do not allow ads that “promote the sale or use of illicit or recreational drugs, or other unsafe substances, products or supplements.” Moreover, cannabis-related posts on Facebook or Instagram cannot be segmented to just legal states, so explicit promotion will quickly be flagged, and the offending account will be cancelled.
The best practice in digital advertising today is to rely on programmatic advertising networks — where your ads will appear on a wide variety of websites, apps, even streaming TV platforms in states where cannabis is legal and the audience is over 21, matched to the viewers who will see them. There are thousands of content providers — from major news sites to lifestyle online communities —eager to accept ads from compliant cannabis and/or CBD marketers (some sites will only accept CBD, but this, of course, is constantly in flux.)
While some states have specific rules for ad copy, there are general guidelines to follow when crafting ad messages — the primary rule being that you cannot claim any health or medical benefits. There can be no false or misleading statements. No testimonials or endorsements. No depiction of product consumption. No cartoon characters or other elements that appeal to children. No statements of potency. No promotional offers. And such warnings as “For Adult Use Only” or whatever else is required by regulations.
Marketers must remember, too, that the Telephone Consumer Protection Act restricts not only telemarketing calls, but also text advertising. Unsolicited texts can be violations of the TCPA, because they are interpreted by the courts to be equivalent to voice calls. And the penalties can be up to fifteen hundred dollars per individual violation, with no ceiling on how high the damages can be. Outdoor advertising is one more potential “gotcha” with unique restrictions on locations; advertisements that can be seen within a certain range of a school, playground, hospital, library, park, childcare center or other specific place can subject the advertiser to thousands of dollars in fines, and even imprisonment. One day this may all be easier, but for now, it’s vital to know the rules before making any move.