Most businesses in Massachusetts are free to market their business using a variety of creative advertising methods. Neon signs? Usually no problem. Vinyl-wrapped vehicles? Great exposure. Hosting a giveaway or handing out coupons? A good way to get new customers. But if you’re a recreational marijuana business in Massachusetts considering any of those methods, you’ll want to reconsider. All of those advertising practices are prohibited.
Marketing and advertising a recreational marijuana business in Massachusetts is subject to strict regulation.[i] A marijuana business may, for example, adopt a logo, sponsor charitable or sporting events, provide samples to customers (for inspection, not consumption), post pricing, and otherwise advertise its business, but only if such practices are consistent with the regulations set forth in 935 CMR 500.105(4). Below is a summary of the advertising, marketing, and branding activities that are prohibited by those regulations.
| Prohibited Advertising, Marketing, and Branding Practices | |
| Logos | |
| Using a logo that includes (a) medical symbols, (b) images of marijuana, (c) related paraphernalia, or (d) colloquial references to cannabis and marijuana[ii] | |
| Advertising to Minors | |
| If at least 85% of the audience is not expected to be 21 or over, advertising, marketing, and branding at or in connection with a charitable, sporting, or similar event[iii] | |
| If at least 85% of the audience is not expected to be 21 or over, advertising, marketing, and branding by means of TV, radio, internet, mobile applications, social media, other electronic communication, billboard or other outdoor advertising, or print publication[iv] | |
| Advertising practices that promote the diversion of marijuana or marijuana use to individuals younger than 21[v] | |
| Advertising that utilizes statements, designs, representations, pictures or illustrations that portray anyone younger than 21[vi] | |
| Advertising that is deemed to appeal to people younger than 21, including use of mascots, cartoons, brand sponsorships and celebrity endorsements[vii] | |
| Product Samples and Display of Products | |
| Displaying and providing in-store samples to customers for inspection if display cases for such samples are not transparent and not stored in secure, locked cases[viii] | |
| Allowing customers to use or consume samples in-store[ix] | |
| Displaying marijuana products so they are clearly visible to a person outside the marijuana establishment[x] | |
| Pricing | |
| Advertising pricing except through a catalogue or printed list of products in the establishment’s retail store, which may be posted to the establishment’s website[xi] | |
| Promotional Items | |
| Promotional items, including, but not limited to, gifts, giveaways, coupons, or “free” or “donated” marijuana[xii] | |
| Advertising, marketing, or branding marijuana products on clothing, cups, drink holders, apparel accessories, electronic equipment or accessories, sporting equipment, novelty items and similar portable promotional items[xiii] | |
| Signage | |
| Neon signage[xiv] | |
| External signage that is illuminated beyond the period of 30 minutes before sundown until closing[xv] | |
| Signs or other printed matter advertising any brand or kind of marijuana product that are displayed at a licensed premises where marijuana products are not regularly and usually kept for sale[xvi] | |
| Vehicle Advertising | |
| Use of vehicles equipped with radio or loudspeakers, or use of radio or loud speaker equipment in an establishment for purposes of attracting attention[xvii] | |
| On or in private or public vehicles, at bus stops, taxi stands, transportation waiting areas, train stations, airports, or other transportation venues, or vinyl-wrapped vehicles or signs or logos on transportation vehicles or company cars[xviii] | |
| Online Advertising | |
| Using a website that fails to verify a user is 21 years of age or older[xix] | |
| Using unsolicited pop-up advertisements online[xx] | |
| General Advertising Standards | |
| Advertising practices that jeopardize the public health, welfare or safety of the general public or are otherwise unreasonable[xxi] | |
| Improper or objectionable advertising, including the use of recipe books or pamphlets for marijuana products which contain obscene or suggestive statements[xxii] | |
| Advertising, including statements by a licensee, that makes false or misleading statements about other marijuana establishments[xxiii] | |
| Advertising that is deceptive, false, misleading, or untrue, or tends to deceive or create a misleading impression (whether directly, or by ambiguity or omission)[xxiv] | |
| Statements and Warnings | |
Failing to include, conspicuously on the face of advertisements, the statement “Please Consume Responsibly” and at least two of the following warnings:
|
|
| Failing to include the following wording (including capitalization) in advertisements:
“This product has not been analyzed or approved by the Food and Drug Administration (FDA). There is limited information on the side effects of using this product, and there may be associated health risks. Marijuana use during pregnancy and breast-feeding may pose potential harms. It is against the law to drive or operate machinery when under the influence of this product. KEEP THIS PRODUCT AWAY FROM CHILDREN. There may be health risks associated with consumption of this product. Marijuana can impair concentration, coordination, and judgment. The impairment effects of edible marijuana may be delayed by two hours or more. In case of accidental ingestion, contact poison control hotline 1-800-222-1222 or 9-1-1. This product may be illegal outside of MA.”[xxvi] |
|
| Including statements that assert a licensee’s products are safe, or have curative or therapeutic effects, in advertising other than the one above, unless supported by substantial evidence or clinical data as determined by the Commission[xxvii] | |
| Failing to include the Department of Public Health’s standard health warning on advertising materials[xxviii] | |
Note that these regulations are still young and untested. As of the date of this article, the Cannabis Control Commission (“CCC”) has not taken any enforcement action related to 935 CMR 500.105(4). As a result, it is still unclear how the CCC (or the courts) will interpret these regulations. Finally, nothing in this article should be construed as legal advice. It is merely a summary of the regulations. If you have questions regarding these regulations, contact one of our cannabis industry professionals.
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[i] The marketing and advertising regulations for medical marijuana treatment centers are found under 935 CMR 501.105(12), though many of those regulations are similar to those applicable to recreational marijuana businesses.
[ii] 935 CMR 500.105(4)(a)(1)
[iii] 935 CMR 500.105(4)(b)(12)
[iv] 935 CMR 500.105(4)(b)(2)
[v] 935 CMR 500.105(4)(a)(5)
[vi] 935 CMR 500.105(4)(b)(3)
[vii] 935 CMR 500.105(4)(b)(4)
[viii] 935 CMR 500.105(4)(a)(3)
[ix] Id.
[x] 935 CMR 500.105(4)(b)(21)
[xi] 935 CMR 500.105(4)(b)(20)
[xii] 935 CMR 500.105(4)(b)(6)
[xiii] 935 CMR 500.105(4)(b)(17)
[xiv] 935 CMR 500.105(4)(b)(8)
[xv] 935 CMR 500.105(4)(b)(9)
[xvi] 935 CMR 500.105(4)(b)(19)
[xvii] 935 CMR 500.105(4)(b)(10)-(11)
[xviii] 935 CMR 500.105(4)(b)(18)
[xix] 935 CMR 500.105(4)(b)(13)
[xx] 935 CMR 500.105(4)(b)(14)
[xxi] 935 CMR 500.105(4)(a)(5)
[xxii] 935 CMR 500.105(4)(b)(16)
[xxiii] 935 CMR 500.105(4)(b)(5)
[xxiv] 935 CMR 500.105(4)(b)(1)
[xxv] 935 CMR 500.105(4)(a)(5)
[xxvi] 935 CMR 500.105(4)(a)(6)
[xxvii] 935 CMR 500.105(4)(b)(7)
[xxviii] 935 CMR 500.105(4)(b)(15)