Social Media Marketing of Marijuana Poses Challenges for Pot Shop Owners

California marijuana marketing 101: Hire an experienced Los Angeles marijuana business attorney. Yes, you can hire a marketing firm to send out your email blasts or pour some time into cultivating an Instagram following or hire a firm to write some blogs and boost your SEO. However, cannabis shops and distributors shouldn’t drop a dime – or their time – on these things until they have spoken with a California marijuana business lawyer. Yes, you want to be informative, educate, entertain, build brand loyalty and a community of customers – and yes, ultimately move your product. But if you aren’t careful about reading the fine print, you could see your money and resource investment go up in smoke.

Just like tobacco and alcohol, the cannabis industry has a number of restrictions about how it can be advertised and marketed. Running afoul of this can be expensive, potentially embarrassing and could cost you business. There are state advertising laws that must be considered, with some regulations specific to the cannabis industry. On top of that, you have to consider the platform. Popular social media apps like Instagram and Facebook have specific terms of service use that don’t allow advertising of “criminal activity” – and marijuana is still a Schedule I controlled substance under federal law.

California cannabis shop owners and dispensary operators have been dealing with this sort of thing for some time now, but in Maryland, they’re just starting to face down some of these challenges. The Washington Post recently detailed the struggles of a fledgling marijuana dispensary owner who started with a dream and a little cash and a bit of social media savvy. Marketing on Instagram would be a great way to reach her target audience. She went for it – and it was wildly successful. Customers followed for the latest “Waxy Wednesday” promotion or educational captions on interesting photos, such as the “Featured Flower” she posted regularly. And then – all of it was deleted. Instagram abruptly announced the account violated its complex terms of service. Hundreds of hours of work were lost – and the marijuana business owner suddenly had no way to reach the following she’d worked so hard to build.

Laws on Mass Marijuana Marketing 

Let’s start at the federal level. First, there is the possible risk of prosecution for marijuana advertising under the Controlled Substances Act. 21 U.S.C. section 843(c) bans placement of written advertisements for marijuana and other controlled substances in any newspaper, magazine, handbill or other publication knowing it is done with the purpose of seeking or offering unlawfully to receive, purchase or distribute marijuana. … Soooo… Does that mean you can’t advertise? Not exactly. The measure is seldom-enforced, but it does mean that you’ll need to proceed with appropriate caution. 

Media outlets are protected to an extent under the Rohrabacher-Blumenauer amendment to a 2014 federal spending bill, which essentially blocks the U.S. Justice Department from interfering with medical marijuana programs that are legal under state law. It has to be renewed each fiscal year – and it was in the most recent, thankfully undermining then-U.S. Attorney General Jeffrey Sessions’ efforts to once again prosecute state-legal pot shops on all kinds of offenses. However, this protection extends only to medical marijuana programs. Commercial marijuana businesses – and the mediums that publish their ads – are guaranteed no such protection.

As Los Angeles marijuana business attorneys can explain, this is why you’re seeing reticence from large social media companies like Facebook and Instagram. Facebook, for instance, has a policy that bars content or advertisements that promote the use or sale of unlawful prescription or recreational drugs.

There are a fair number of opportunities on social media platforms for ancillary industry firms, like labs or lawyers. As we do at The Cannabis Law Firm, content is focused on education. However, Los Angeles marijuana businesses marketing direct weed sales to customers usually won’t be able to advertise at all there (or at least for long).

In California, marijuana businesses will want to refer to Proposition 64, Chapter 15 Advertising and Marketing Restrictions. Section 26151-26155 explains details a laundry list of criteria for those who want to advertise marijuana products or businesses. It’s worth a look if you haven’t ventured there already. We won’t list every provision here, but essentially, you have to make sure your ads are on digital/ broadcast/ print platform where an adult audience over 21 is reasonably expected. Ads can’t pander to minors or be within 1,000 feet of certain places where minors are, like daycares, schools or youth centers. Advertisements must be truthful and they can’t offer giveaway promotions. If your ad is displayed inside your place of business not easily visible to the public or those under 21, these restrictions won’t apply.

Los Angeles Marketing and Ad Consulting Attorneys Can Help

If you want to give it a shot, you will want to consider contacting a marijuana attorney first. We have a number of resources to help you maximize your ability to reach your customer base – and do so legally. Some tactics may include:

• Contracting with a content or ad agency that is marijuana-specific. You’ll want to be confident they understand the laws, aren’t going to run afoul of them and cause you to lose your investment and hard-earned online customer base.
• Reaching out to social media influencers and brand ambassadors can be a good promotion tool also, but again, you’ll need to be strategic.
• Tailoring your content to be more educational, rather than blatantly sales-driven.
• Diversifying your online presence so that if one page or account does get shut down for some reason, you’ve still got a backup channel to customers.

Note that none of these measures will guarantee your page/ account/ ads won’t face scrutiny or end up erased, but it may give you a better shot.

The Los Angeles CANNABIS LAW Group represents growers, dispensaries, collectives, patients and those facing marijuana charges. Call us at 949-375-4734.

Additional Resources:

Marijuana education or illegal drug-selling? Instagram’s not sure, Dec. 7, 2018, By Steve Thompson, The Washington Post

More Blog Entries:

Pall Cast Over Hemp Win as FDA Dubs CBD Products Illegal, Dec. 24, 2018, Los Angeles Marijuana Advertising Lawyer Blog