Recently, New York (“NY”) State’s Cannabis Control Board (the “Board”) took significant steps towards implementing the Marijuana Regulation and Taxation Act. Specifically, on February 17, 2022, the Board approved Medical Cannabis Program regulations to be released for public comment, including proposed marijuana marketing regulations. In addition, on February 22, the NY Governor signed into law a bill that allows farmers to obtain conditional adult-use cultivator and processor licenses to grow, process and distribute cannabis flower products in 2022. With the imminent implementation of NY’s recreational Adult-Use Cannabis Program, businesses that are interested in marketing marijuana to NY citizens should consult with knowledgeable marketing attorneys concerning how to meet their statutory compliance obligations.
Marijuana Marketing: Dos and Don’ts
The Medical Cannabis Program regulations include comprehensive NY marijuana advertising regulations (Section 113.17 “Cannabis Marketing and Advertising”). While the regulations focus on medical marijuana, many of the advertising regulations will apply to all types of marijuana marketing in NY.
Do. According to NY’s Cannabis Marketing and Advertising regulations, marijuana farmers and distributors that participate in marijuana marketing must:
- Use true and accurate statements relating to product effectiveness, side effects, consequences or contraindications, if such statements are included in their advertising; and
- Accurately and legibly identify the party(ies) responsible for such advertisements.
No. In contrast, marijuana farmers and distributors must not:
- Publish obscene, unproven, false, or misleading advertisements;
- Falsely target competitors’ products;
- promote over-consumption;
- Advertise to minors, including using images of minors, and figures, symbols or languages that are customarily associated with individuals under the age of 18 (eg, candy and cartoons);
- Offer prizes, awards or inducements to certified patients, designated caregivers or practitioners related to the purchase of medical cannabis products;
- Suggest that entities or products have been endorsed by the State of New York or any entity associated therewith;
- Locate marijuana advertisements: (1) within or visible from 500 feet of school grounds; (2) on or in public transit vehicles or stations; (3) within unsolicited internet pop-ups; or (4) on billboards; or
- Advertise cannabis or cannabis devices on the exterior of businesses’ physical structures or vehicles (eg, store) unless prior written approval is received from the Office of Cannabis Management.
Please note that the Cannabis Marketing and Advertising regulations are proposed legislation right now. Following the public comment period, the NY marijuana marketing and advertising regulations may change and look significantly different from how they do today. In light of these requirements, restrictions and potential changes thereto, it is recommended that marijuana advertisers consult with knowledgeable marketing attorneys concerning how to meet their statutory compliance obligations.
Klein Moynihan Turco maintains an extensive practice in the fields of Internet and mobile marketing law, consumer data privacy law, sweepstakes and promotions law, fantasy sports and gaming law, intellectual property and general corporate law. If we can be of assistance, please visit https://kleinmoynihan.com or call us at (212) 246-0900.