March 8, 2019
As more states legalize medical and recreational marijuana, the continued federal prohibition on marijuana sales creates uncertainty for marijuana marketing and marijuana-related product and service businesses. Just this last February, CBS rejected a medical marijuana advertisement that was set to air on its national Super Bowl broadcast. Similarly, social media platforms, such as Facebook, have treaded lightly when it comes to allowing marijuana product advertising. However, we have learned that Facebook is now discussing potentially changing its marijuana marketing policy to allow businesses to market on the platform.
What are Facebook’s concerns surrounding marijuana marketing?
Facebook’s Policy on Marijuana
In October, 2018, we blogged about Facebook’s concession to allow marijuana marketing via cannabis-related pages (for verified businesses) to appear in users’ search results. Notwithstanding the foregoing, businesses were still prohibited from: 1) explicitly mentioning that a product was for sale, trade, or delivery; 2) asking the audience to buy a product; 3) listing a product price; and 4) encouraging contact/inquiries about a product. According to Facebook’s “Community Standards” on regulated goods, the social media platform “prohibit[s] attempts by individuals, manufacturers, and retailers to sell, or trade non-medical drugs, pharmaceutical drugs, and marijuana.” However, as state marijuana regulations evolve, it appears that Facebook is poised to evolve its marketing policies with them.
Facebook’s Reservations about Marijuana Marketing
Facebook has three major concerns with modifying its marijuana marketing policy: 1) how to comply with legal regulations that vary from state-to-state and country-to-country; 2) how to prevent minors from accessing the content; and 3) how to prevent black-market businesses from exploiting any new policy. Facebook will have to determine whether it has the operational capacity to address these concerns before changing its current policy. Current discussions have been limited to marijuana marketing in Facebook posts, and have not ventured far into considering paid advertisements and inclusion in Facebook’s online marketplace.
If you market marijuana-related products, not only must you comply with applicable state laws, but also the marketing policies (including terms of service and other related policies) of social media platforms. Marijuana-related businesses should consult with an experienced marketing attorney before commencing any marijuana advertising campaign. If you are interested in learning more about this topic or need to review your marketing practices, 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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