Marijuana Advertising Rules: Challenging but Not Insurmountable

Marijuana-related businesses have a problem. It’s extremely challenging to market and advertise their products and services because marijuana is still considered a Schedule 1 drug. In other words, advertising products and services related to a substance that is illegal at the federal level poses unique obstacles that no other industry faces.

As Jean-Paul Jassy of Cannabis Business Executive explains, “It is unlawful to use a ‘communication facility’ (i.e., mail, telephone, wire, radio, and all other means of communications) to facilitate a felony.” Based on the Controlled Substances Act, federal laws make it very clear that marijuana businesses cannot use mail, phone, radio, television, and so on to promote their products and services. Why? Because federal law sees using these communication vehicles as ways to sell an illegal drug.

It’s important to point out that the law gets a bit confusing as it relates to advertising though, because advertising doesn’t have to directly try to facilitate a transaction. For example, a dispensary might mail educational materials or buy ad time on a radio station to provide an educational message (of course, with its name and location included at the end of the ad for indirect promotional purposes). It’s a gray area of the law though with no precedent set, so marijuana businesses have to be extremely careful.

Federal law always trumps state law in lawsuits that can be tried at the federal level, so regardless of a marijuana business’ state laws, it needs to be aware of and follow applicable federal laws. This is where an attorney who specializes in this type of work is so useful!

Adding more obstacles for marijuana businesses to navigate are the U.S. Postal Service, email service providers, internet service providers, and online advertising platforms. Most email service providers have specific rules in place stating their applications cannot be used to promote illegal substances, including marijuana. Advertising platforms such as Facebook and Google AdWords have similar rules that prohibit marijuana-related ads from their networks.

The U.S. Postal Service is an entity of the federal government and abides by federal law, which means it’s illegal to mail materials promoting an illegal substance. These mailings would be considered “nonmailable.” However, in 2015, the U.S. Postal Service clarified its stance on nonmailables saying its employees would notify the sender when nonmailables are felonious, but if the mailer insists on putting the materials into the mail, employees would do so. The employees would then need to file a report to their local inspection service, and the matter would be turned over to the responsible law enforcement agency if appropriate. In other words, marijuana businesses can mail properly prepared materials to promote their products and services, but they do run the risk of being contacted by law enforcement officials once those materials go in the mail.

Bottom-line, since marijuana is still a Schedule 1 drug, federal laws make it very difficult for marijuana businesses to pursue many traditional advertising opportunities that other industries use every day to build their brands, attract new customers, and grow.