February 15, 2018
In 2012, the State of Colorado legalized the recreational use of marijuana within its borders. Shortly thereafter, marijuana advertising laws were enacted in the State.
What are some of Colorado’s most notable marijuana advertising laws?
In 2017, legal sales of medical and recreational marijuana in Colorado sky-rocketed to approximately $1.5 billion (an increase of approximately $700 million since 2015). Colorado’s marijuana advertising laws remain largely unchanged since their enactment, despite concerns and even a lawsuit (which was ultimately dismissed for lack of standing) as to the broad and ambiguous nature of the regulations.
The laws regulating the licensing, sale, and advertising of retail marijuana in Colorado include the Retail Marijuana Code, Colo. Rev. Stat. § 12-43.4-103, and the Retail Marijuana Rules, 1 Colo. Code Regs. § 212-2. Colorado’s marijuana advertising laws regulate “Retail Marijuana Establishments,” which are defined to include retail marijuana stores, retail marijuana cultivation facilities, retail marijuana product manufacturers, and retail marijuana testing facilities. These laws restrict and/or limit Retail Marijuana Establishments from engaging in certain marijuana advertising, including:
- making false, misleading, or deceptive statements on any product, sign, or document provided to consumers;
- targeting consumers outside of the State;
- publishing unsolicited pop-up advertisements on the Internet;
- publishing banner ads on mass-market websites;
- targeting minors under the age of 21 (including use of cartoon characters);
- outdoor advertising on signage; and
- advertising to location-based devices, such as cellular phones.
In addition, Colorado’s marijuana advertising regulations limit advertising through certain platforms unless the Retail Marijuana Establishment has “reliable evidence” that 30 percent or less of the audience is expected to be under the age of 21. This media includes:
- television and radio advertising (including videos and/or audio programming downloaded or streamed via the internet);
- print advertising;
- Internet advertising; and
- advertising at sponsored events, such as for charity, sports, or other similar events.
Marijuana Retail Establishments are also prohibited from advertising that their products are safe simply because they are controlled by the State Licensing Authority or safe because their products have been tested by a Retail Marijuana Testing Facility.
Marijuana Advertising – Protect Yourself
For all Colorado-based Retail Marijuana Establishments and their respective marketing partners, the State’s marijuana advertising laws should be reviewed carefully and discussed with counsel. This is necessary because a violation of Colorado’s marijuana advertising laws may result in a violation of civil, regulatory, and/or criminal law (class 2 misdemeanor). In addition to the marijuana advertising laws at the state level, many municipalities in Colorado have their own local marijuana advertising ordinances. Importantly, for marijuana-related businesses that wish to advertise marijuana on social media platforms, the Terms of Service for these respective venues must be read thoroughly. Many online platforms restrict or completely prohibit marijuana marketing within their ecosystems.
Needless to say, all Colorado Marijuana Retail Establishments should be sure to speak with an experienced marketing attorney before commencing any marijuana-related advertising campaign.
If you are interested in learning more about this topic or need to review your marijuana advertising practices and marketing creative, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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