As of this last election, eight states and our very own District of Columbia have legalized or decriminalized recreational marijuana consumption. The rest of the states have either passed laws only legalizing medical marijuana consumption or marijuana consumption continues to be unlawful. Similarly, marijuana use continues to be illegal at the federal level (so. if you’re in DC. don’t light up on federal property.) However, it seems likely that the number of states decriminalizing marijuana will continue to grow. There are, of course, a whole host of legal issues surrounding the legalization of marijuana, many of which have probably not yet been fully fleshed and thought out. However, since this is an advertising blog, we were curious to see to what extent states have already begun to regulate the advertising of legal marijuana. Somewhat to our surprise, many of the states where marijuana is legal have fashioned some rules around its advertising. In many cases, these rules are similar to those that have been fashioned around the sale of other adult products such as alcohol and tobacco.
Two states, Maine and Massachusetts, just recently decriminalized marijuana and are still working on advertising regulations. In the other states (DC is an outlier and only has regulations pertaining to medical marijuana), the regulatory restrictions break down along the following lines:
- There are certain places where you simply can’t advertise marijuana. This can include near schools, child care facilities, on public property or transit, or on a college campus (there is perhaps no need to advertise there). One state, Colorado, more broadly prohibits advertising that is visible from any street, sidewalk or other public place. On the other hand, Oregon does not have any such restrictions.
- In some states, the viewership for recreational marijuana ads must be primarily adult. In California, 71.6% of the audience must be 21 or older; in Colorado, the percentage is 70%.
- In the remaining states, advertisements must not more generally target individuals under the age of 21 and/or show individuals under the age of 21 using marijuana.
- Curiously, in Washington state, advertisements cannot “promote consumption.”
- One important issue facing advertisers is the issue of advertisements that may “bleed over” into jurisdictions where the sale or promotion of recreational marijuana is illegal. California addresses this, in part, in its regulations, prohibiting advertising on any highway which crosses the border of any other state.
- Finally, some, but not all, states require warnings on advertisements. These include that marijuana may be intoxicating, habit forming, can impair judgement, there may be health risks, for use only by adults 21 years of age or older, and keep out of reach of children.
As the above summary illustrates, there are considerable differences in the regulation of recreational marijuana advertising in states where it is currently legal. As more and more states legalize recreational marijuana, these differences in state laws may make broader dissemination of marijuana advertising difficult. With most “adult” products, the solution has been the adoption of federal standards, however, unless and until federal laws prohibiting the use of marijuana are repealed, such a solution seems unlikely.
© 2017 Venable LLP. Using, distributing, possessing, and/or selling marijuana is illegal under existing federal law. Compliance with state law does not guarantee or constitute compliance with federal law. This informational overview is not intended to provide any legal advice or any guidance or assistance in violating federal law.