May 3, 2023
Written by Highlyte
It’s true that the cannabis industry is a patchwork of different state regulations that can vary from medical-only to adult use, with wildly variable legislative language. But the essential components of most states’ cannabis marketing regulations are quite similar, like not promising miracle cures or appealing to minors.
Many cannabis compliance rules in emerging markets are patterned on those of states that legalized first, or on compliance metrics for other highly regulated industries like gambling or alcohol. Still other regulations are based on those of federal regulatory bodies like the FCC, FDA or USDA that don’t directly apply to cannabis—yet—but do control broadcast, banking and consumer safety channels that affect businesses in almost every sector.
Although some states have unique quirks (like Michigan’s insistence on calling cannabis “marihuana” in all of its legislation), the commonalities between different regulatory environments mean cannabis companies are often making the same mistakes. Here are six of the top cannabis content compliance mistakes, and how to avoid them.
The state of Washington, for example, not only bans giveaways but also “coupons and distribution of branded merchandise.” But even if cannabis giveaways are compliant by state standards, advertising promotions on social media could violate those platforms’ terms of service, and result in other consequences like shadowbanning.
Asking people to come to your retail location, for example, can count as a call to a sale. Urging the audience to “visit our website” or “swipe up to read” a blog post can also be construed as call to sale if that website or blog shares digital space with online retail. Instead, brands should point their CTA statements to a separate domain without sales content, or to a landing page hosted within a CRM.
For example, asking a brand’s Instagram followers to tag a friend can quickly run afoul of regulations designed to age-gate cannabis content and protect minors. Offering a bong or other paraphernalia as a prize might trigger a red flag from the platform’s algorithm. But asking the audience to vote on different designs for a new sweatshirt or to comment on a post about the band they would most like to see at a music festival with a pair of tickets as a prize would be more likely ruled compliant.
From a compliance perspective, it doesn’t matter if an anime-style drawing on a brand’s merch was designed with adults in mind. Even if a meme of, say, Sesame Street’s Elmo or the Simpsons’ Bart smoking a blunt has been shared far and wide hundreds of times, that doesn’t make it any less problematic from a copyright and compliance perspective.
The No. 1 thing cannabis companies can do to protect themselves from marketing missteps is to read the fine print on state regulations. While some states are relatively lax, others like Massachusetts have surprisingly stringent standards that extend even to font choices and neon colors.
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