New York’s Office of Cannabis Management (OCM) recently proposed Adult-Use Advertising Rules. The proposed rules were published in the New York State Register on June 15, 2022, which triggered the 60-day public comment period. This post is the second in a two-part series. The first post on New York’s proposed Adult-Use Cannabis Packaging and Labeling Rules is available here.
Cannabis Brands and Advertisements
An adult-use licensee may use branding on labels, signs, and other materials. A licensee is allowed to “develop advertising and marketing materials provided the primary purpose of the advertising is to displace the illicit market and inform the consumer of the location of licensed retail dispensaries.” Advertising practices must not “jeopardize public health or safety, promote youth use, or be attractive to individuals under twenty-one.”
A licensee may advertise cannabis by television, radio, print, internet, mobile apps, social media, and other electronic means, but only if the licensee has reliable evidence that at least 90% of the audience is twenty-one or older. The burden of proof of the audience composition falls on the licensee. Similarly, a licensee may sponsor a charitable, sports, or similar event, but only if they have reliable evidence that at least 90% of the audience at the event or viewing the advertisement is reasonably expected to be twenty-one or older.
A licensee must keep records and documentation of all advertising materials to ensure compliance with the advertising rules. A licensee who advertises online or through an app must have a mechanism designed to keep those under the age of twenty-one from visiting the website or app.
A licensee may sell apparel displaying its brand and trademark, but only in adult sizes and the apparel can only be sold within the licensed premises. If a licensee enters into a licensing, marketing, or advertising agreement with a third party, the licensee must ensure the third party also abides by OCM’s advertising rules.
Required Notices and Warnings
A licensee needs to include its name and license number on all advertising and marketing materials. Any cannabis ad must include the following statement (verbally or in writing, depending on the medium):
For use only by adults 21 years of age and older. Keep out of reach of children and pets. In case of accidental ingestion or overconsumption, contact the National Poison Control Center hotline 1-800-222-1222 or call 9-1-1. Please consume responsibly.
In addition, any marketing or advertising of cannabis or cannabis products must include one of the following phrases in its entirety in a rotating manner:
- Cannabis may cause impairment and may be habit forming.
- Cannabis can impair concentration, coordination, and judgment. Do not operate a vehicle or machinery under the influence of cannabis.
- There may be health risks associated with consumption of this product.
- Cannabis is not recommended for use by persons who are pregnant or nursing.
All warnings in print or digital advertisements must be displayed:
- in English
- in Times New Roman, Calibri, Arial or Helvetica font
- in text no smaller than size six font
- legible, unobscured, and visible to the consumer, and
- in a bright yellow text box so as to stand out from the surrounding advertisement.
In addition, the New York State HOPEline phone number, text number, and website or QR code on any advertising or marketing materials must be displayed in visual media or read into audio media.
No marketing or advertising of cannabis products shall:
- use images or audio that may be attractive to minors;
- be in the form of a billboard;
- use or display colloquial references to marijuana and cannabis or use depictions, digital images, or icons of cannabis, cannabis products, paraphernalia, or the imagery of smoking or vaping, including but not limited to “stoner,” “chronic,” “weed,” “pot,” or “sticky buds.”
- be false or misleading or contain health claims or representation that use of cannabis has curative or therapeutic effects;
- promote over or rapid consumption or promotes potency or THC concentration;
- falsely portray adult-use cannabis as being medical cannabis or hemp;
- assert that cannabis or cannabis products are safer because they are regulated by the Cannabis Control Board (CCB) or OCM;
- depict a child or person under 21. Talent portrayed in cannabis advertising should be at least 25 years old;
- use the term “organic;”
- contain any obscene or indecent statement, design, representation, picture, or illustration;
- be within or readily observed within 500 feet of an elementary or secondary school, recreation center or facility, childcare center, playground, public park, or library;
- be on or through handbills passed out in public areas (e.g., parking lots or public-owned property);
- include medical symbols that indicate the product is a medical product;
- sponsor an event using a licensee’s brand, business, or trade name;
- utilize unsolicited pop-up or banner ads on the internet other than on age-restricted websites for people 21 and over who consent to view cannabis-related material;
- produce items for sale or promotional gifts, such as t-shirts or novelty items bearing a symbol or reference to cannabis;
- advertise free or promotional items, including, gifts, giveaways, discounts, point-based reward systems, customer loyalty programs, coupons, and free or donated cannabis, except for the provision of branded exit packages by a licensee for the benefit of customers after a retail purchase is completed; or
- violate any other rules from the CCB.
Outdoor retail store signage for the purpose of alerting individuals to the location of a retail dispensary is permitted, provided such signs are limited to the following information:
- Business or trade name
- Business location
- The nature of the business
Signs must be affixed to a building or permanent structure and must be limited to 1600 square inches. Signs cannot be illuminated by neon lights and cannot be attached to vehicles. Each licensee can have no more than two signs. These signs cannot depict cannabis, cannabis products, or imagery conveying smoking or vaping. “Outdoor marketing or advertising is prohibited on signs and placards in arenas, stadiums, shopping malls, fairs that receive state allocations, and video game arcades, whether any of the foregoing are open air or enclosed but does not include any such sign or placard located at an adult only facility[.]” Licensees may not use commercial mascots.
Like the rules regarding packaging and labeling, the New York Cannabis advertising rules are restrictive, especially with regard to ads that might appeal to children. While there is no question that cannabis should not be marketed to children, prohibitions on bright colors and the use of colloquial terms for cannabis are in stark contrast to the way alcohol ads are regulated. Hopefully, these regulations will still allow for creative branding in the New York cannabis space.