What’s the Straight Dope on Marijuana Promotions?
Prop 215 was enacted in California twenty-two years today on November 5, 1996. This law was the first of its kind in the U.S. to legalize medical marijuana use. Since then 30 states have approved medical marijuana use and 9 have legalized recreational marijuana. Maybe a long timing coming (for those who like to toke) given that Herodotus first recorded the Scythians inhaling the smoke from smoldering cannabis seeds and flowers to get high in the Fourth Century B.C.E.
We now have over half the country dishing out dope and creating a gigantic ganga industry. Legal marijuana sales in North America were almost $10 billion (with a B) in 2017 and are expected to grow to almost $25 billion (still with a B) by 2021. But we still don't have a real clear landscape on advertising and in particular sweepstakes and contests in the marijuana industry.
Here's what we do know:
- Marijuana is illegal under Federal Law – it's treated as a drug. This means you can't give it away as a prize or advertise it in interstate commerce (for the definition of interstate commerce, please refer to your L1 Constitutional Law text).
- Many states where cannabis is legal have specific advertising restrictions, including:
- Don't advertise to people under 21.
- Don't have "conspicuous" advertising – apparently, you can't advertise where anyone will actually see it.
- Provide warnings.
- And in some states: NO CONTESTS OR SWEEPSTAKES
Where does this leave a cannabis grower/seller who wants to run a fun contest or sweepstakes to promote their pot? The first BIG caveat – because of federal law and certain advertising restrictions, you probably can't get a 100% fresh seal of approval. But, this group may not be the most risk-averse people, so you may want to consider the following guidelines for any contest or sweepstakes:
- Entrants must be 21 or older.
- Limit entries to states where pot is legal.
- If it's for medicinal marijuana, require entrants to show/agree that they have the magic medical marijuana card.
- Don't give out pot as a prize.
- Void in VA, MA and MI at least (these states prohibit cigarettes sweeps, so they might not like cannabis sweeps too).
- Don't make the sweeps about the pot.
- Don't provide entries if people purchase the pot (it's safer this way).
- Don't advertise through the mail. Mailings implicate interstate commerce, which implicates federal law, which is bad.
- Don't run the sweeps on some social media sites. As an example, Facebook and Google won't allow marijuana ads.
- FINALLY: BEFORE YOU DO ANYTHING CHECK THE STATE LAWS, THEN RECHECK THE STATE LAWS, THEN MAKE ABSOLUTELY SURE YOUR PROMOTION IS OK.