Years after legalization, cannabis businesses still do not have clear parameters for what they can and cannot advertise. At a State level, Washington recently buttoned-down advertising, causing many businesses to have to remove billboards, transportation ads and other marketing platforms. Washington cannabis producers and processors are only allowed to have signs, which are on the licensed property and attached to the building, while retail stores are allowed to have billboards with limited content. Among other restrictions, the sign or billboard can only promote the name of the company, the nature of the business, and the company’s logo. These regulations are tight but at least they provide clear guidelines on what is, and what is not, allowed.
What about social media?
Social media advertising is much less consistent on what a cannabis industry business can advertise, both with an actual ad and on the company’s social media page. There are no clear guidelines set for the industry at this time and some argue, this is a good thing.
In a recent two-part article (Part 1 and Part 2), Marijuana Business Daily reported that ads will be approved by social media platforms like Facebook and Instagram, and then taken down weeks later, wasting precious marketing dollars. The article continues by stating cannabis businesses should continue to advertise on this platform—staying within reasonable parameters as far as content is concerned— because regulations may be coming down the pipe. To note: Alcohol and tobacco ads are heavily regulated and essentially banned on many social media sites. So, before it comes to that, cannabis businesses may want to leverage the social media platform as much as possible.
The message isn’t all negative.
There has been an increase in print and television mediums allowing cannabis businesses, and those ancillary to the industry, to advertise their products and services. As the second installment of the article states, a law firm, a dispensary, and a grower have recently had success. These marketing campaigns, though the exception, should be seen as a positive step towards public awareness and acceptance of the industry. The industry will always face discrimination and those who are morally or otherwise opposed to the “drug” of cannabis. The only way through that roadblock is to promote businesses, and the industry as a whole, as professional and legitimate.
As with many situations, for those looking to advertise, money talks. Media outlets are more likely to overlook the nature of the content, and personal feelings on cannabis, if the price is right. However, this is not an option for most companies, at least in Washington State, operating on small margins. What may be money better spent is on branding and creating brand loyalty within your clientele – whether with retail stores or the general public. A winning brand or slogan could carry the business while the industry remains in the grey area of marketing; with the goal of seamlessly shifting the brand’s message into public perspective when/if cannabis becomes federally legal.
I shouldn’t have to say it, but I will anyway: avoid using puns in marketing. This industry is ripe with puns and constantly coughing up ways to blow smoke (see what I did there?). Puns are over used and give off a cheapened view of the industry that is often associated more with the black market.
After you have developed a strong brand, trade name and/or logo, the next step is to protect those assets through trademarking. Federal intellectual property protection is off the table as far as cannabis is concerned, but it could be linked to hats, stickers or other items. Also, do not overlook the state trademark system. Securing a state trademark may go a long way in proving first-in-use should federal protection ever become available. The attorneys at JDSA have been successful in attaining state trademarks and conducting federal searches for clients, which also help to set brands up for success when the federal barriers are lifted. JDSA’s Intellectual Property team will help navigate your goals and provide industry specific advice on where and who to target.
Bringing it all together.
Marketing through normal channels may not be a viable option for most cannabis businesses due to the regulations, costs and risks that even if initially approved, may be taken down.
The cannabis industry is accustomed to being told no – and having to get creative. The realm of advertising is yet another opportunity for the industry to seek new mediums for promoting their message. I have faith that the industry will adjust and continue to creatively flourish.