When it comes to regulating marijuana advertising, California lawmakers have visions of the Marlboro Man.
A short-in-length but very broad bill that has sailed through the Legislature this year would restrict marijuana branding in much the same way as tobacco promotions. That means state marijuana licensees would be barred from hawking branded t-shirts, hats, and other merchandise. And just like Marlboro’s famous cowboy, images touting cannabis shops and products would be banned on certain highway billboards.
Supporters of SB 162, which include the California Police Chiefs Association and the American Academy of Pediatrics, California, want to make marijuana less visible and less appealing to kids.
“We know there’s a lot of research that shows branded merchandise such as t-shirts, sunglasses, hats, can be directly tied to the higher use of tobacco and alcohol amongst teens,” the bill’s author, Sen. Ben Allen, D-Santa Monica, said at a legislative hearing this summer. “We’re basically trying to extend the prohibition that we currently have on merchandise in the area of tobacco to the marijuana space.”
The bill, scheduled to be heard in the Assembly Appropriations hearing on Wednesday, has not received any “no” votes in committee hearings.
Marijuana business representatives fighting the bill say its provisions are an unfair attack on an increasingly highly regulated industry where, unlike tobacco, more than half of the product is applied or consumed rather than smoked. Intellectual property lawyers criticize what they see as vague language and potential loopholes that could lead to a host of unintended consequences.
“We are in no way trying to facilitate the access of minors” to marijuana, said Nicole Syzdek, an associate at the intellectual property firm Evoke Law in San Francisco. “We would just like regulations that make sense. The way that they’ve done this doesn’t make any sense for the industry.”
After California approved recreational marijuana in November, state lawmakers introduced a swarm of bills to regulate its use, sale, packaging and advertising—even as executive branch agencies are drafting their own set of rules, expected to be released this fall in anticipation of the January recreational market launch. At least seven bills still pending in the legislative session’s final four weeks deal with branding and packaging.
Many of the bills’ stated purposes involve keeping kids away from marijuana, a goal that—depending on the methods—is popular with industry leaders, the public and politicians. Preventing the distribution of marijuana to minors was also listed as a top priority by the U.S. Department of Justice in the 2013 Cole memo, which offered cannabis-legal states suggestions for reducing their risk of federal prosecution.
SB 162 was written at less than 700 words—short by most legislative standards—but it includes many directives. In addition to the branding and billboard bans, the bill prohibits false or misleading advertising; marketing that suggests a product was cultivated in a certain appellation when it wasn’t; publishing ads that are “attractive to children” or advertising on signs within 1,000 feet of a daycare, K-12 school, a playground or youth center.
The lack of specificity in parts of the legislation is problematic, says Syzdek and Evoke Law partner Mary Shapiro. For instance, the ban on “branded merchandise” would appear to cover accessories such as lighters, vaporizers, pipes and grinders, items that are directly associated with marijuana use but not things that would usually be seen by the public or children.
Also, SB 162, applies to state marijuana “licensees.” Many marijuana operations set up intellectual property holding companies separate from their cultivation and distribution businesses. The intellectual property company would not be licensed; could it license a third party to sell branded merchandise on its behalf?
“We’re not clear if this might be some sort of loophole” Syzdek says.
The bill bars branded merchandise sporting “the name or logo of the product” but it does not mention the company mark.
“We can’t really tell from the language in the bill whether you can use the house mark,” Shapiro says.
Shapiro and Syzdek say they’ve shared their concerns with the author’s office with no response. Allen has continued to say the state’s tobacco-regulating framework is a suitable one for marijuana.
“There’s no reason why all of a sudden we should put less restrictions on this product [marijuana] versus a product that we’ve regulated [tobacco] for a long time but that has been legal,” Allen says.