The law surrounding advertising of cannabis and cannabis services and accessories is new, convoluted and evolving.  In this post, we broadly outline some of the do’s and don’ts of cannabis advertising.  Then, we apply these regulations to the digital world, showing how digital marketing of cannabis can be done in compliance with regulations.

How can I advertise cannabis legally?

The federal Cannabis Act (S.C. 2018, c. 16) creates strict cannabis marketing rules largely aimed at protecting youth from being persuaded to consume cannabis by marketing.  It should be noted that the rules governing business to business promotion are more relaxed than business to consumer promotion rules.  In this article, we’ll be focusing on business to consumer rules.

Unless specifically authorized under the Cannabis Act, all promotions (i.e. marketing) of cannabis, and cannabis accessories and services are prohibited.  This sounds restrictive – and it is – but it doesn’t mean there is nothing you can do (keep reading, as we’ll be discussing the exceptions to these rules later on). The following list covers several of the specifically prohibited promotional practices:

  • Communicating information about the price or distribution of cannabis products, accessories, or services;
    • This is fairly self explanatory, but it means in most cases, you won’t be able to attract consumers to your products directly through promoting of low prices. Your affordable prices may spread organically, through word of mouth, but you are not allowed to blast them out in ads.
  • Promoting cannabis products, accessories, or services in a manner that could be appealing to youth;
    • No ads with influencers, or movie stars smoking reefer with a hunky guy or beautiful woman hanging on their arms. The main goal of the Cannabis Act is to protect youth from being influenced, so this is an obvious no-no.
  • Promoting cannabis products, accessories, or services by means of a testimonial or endorsement;
    • Michael Jordan can tell you to “Be Like Mike, drink Gatorade”, but he can’t say “Be like Mike, use cannabis products, accessories or services”. Nor can anyone else.  Once again, this is aimed at protecting the youth from being persuaded to consume cannabis by marketing.
  • Promoting cannabis products, accessories, or services by means of a depiction of a person, character, or animal, whether real or fictional;
    • You can’t use Tony the Tiger either. Cannabis may be grrrrrrrreat! but if you have him (or any other depiction of a real or fictional character, animal or person) in your promotions, you’ll be in trouble.
  • Promoting cannabis products, accessories, or services by presenting it or any of its brand elements in a manner that associates it or the brand element with, or evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring;
    • This again, goes back to protecting the youth. The reasoning is that they are more susceptible to associations of products with excitement or other strong emotions.

These promotions are prohibited unless authorization is provided by the Cannabis Act. Therefore, in certain circumstances the above promotional acts might be permitted.  These exceptions are narrow though.

Only a few forms of cannabis promotions are lawful, and only then in certain circumstances.  These types of promotions are:

  • informational promotions;
  • point of sale promotions; and
  • brand-preference

What do these exceptions actually mean? 

Informational Promotion

An “informational promotion” is a promotion by which factual information is provided to a consumer about cannabis, a cannabis accessory, a service related to cannabis, or the availability or price of cannabis, a cannabis accessory or a service related to cannabis.  These promotions must be purely informational and factual.

Point of Sale Promotion

A “point of sale promotion” is a promotion indicating only the availability or price of cannabis, or a cannabis accessory, at the point of sale by a person authorized to sell cannabis or cannabis accessories.

Brand Preference Promotion

A “brand-preference promotion” is a promotion of cannabis or a cannabis accessory by means of its brand characteristics or elements, or promotion of a service related to cannabis by means of the brand characteristics or elements of the service.  Once again, these promotions can’t be associated with minors or be reasonably likely to be appealing to them.

The “brand preference promotion” exception deserves some more context.  The prohibition on brand-preference promotions that appear to sell a certain lifestyle – think ‘Marlboro Man’-type ad campaigns – may not be evident to someone browsing U.S.-dominated social media, since there is no analogous restriction south of the border. The laws in Canada are new, so its difficult to determine at this point where the Canadian authorities will draw the line regarding brand-preference lifestyle advertising. An abundance of caution suggests focusing promotions on the brand itself, rather than on tying them to glamourous or exciting ways of life.

These three categories of exceptions, if applied to the promotion of cannabis (as opposed to cannabis services and accessories) can only be performed by those licensed to do so by the government.

Unlike the promotion of cannabis, promotions of cannabis accessories or services are not limited to being carried out strictly by persons authorized by the government. Instead, the provisions governing these areas simply state that a person (as opposed to an authorized person) may promote a cannabis accessory or a service related to cannabis by means of informational promotion or brand-preference promotion.

There is one exception to the promotion of cannabis being restricted only to those licensed to do so by the government.  A reading of the Cannabis Act suggests that while only licensees may promote cannabis, marketing firms may consult those licensees on how to execute that promotion.  Therefore in these instances, the marketing firm would not be promoting cannabis, instead, they would be advising and aiding the licensee to do so in an effective and compliant manner. Regardless of who is doing the promoting, it is unlawful for anyone to publish or broadcast any promotions prohibited under the Cannabis Act.

What about sponsorships?

Almost all conceivable types of cannabis related sponsorship are prohibited.  For example, Burning Man (or its Canadian equivalent) can’t be sponsored by a Cannabis company, no matter how perfect a fit you think it is.

What about Digital Marketing?

All of the advertising regulations discussed above apply to digital marketing.  This can make it difficult to advertise cannabis through digital platforms.  Additionally, the platforms themselves can be quite restrictive in what they allow.  For example, Google Ads and Facebook make it difficult if not impossible to advertise cannabis through their services.  However, there are ways to advertise digitally legally and effectively.  Perhaps the best way is by using Search Engine Optimization (SEO) strategies.

How can I use Search Engine Optimization (SEO) to advertise cannabis?

Search engines are constantly used by people seeking information on cannabis and cannabis services and accessories.  The operative word here is information (recall the exceptions on informational/educational content mentioned above).  If you are providing educational and informational content, you can use SEO strategies to help people find this content.  This can potentially lead consumers to your website.

To implement a compliant and successful SEO strategy, you need to focus on both the content side and the technical side.  A combination of technical SEO and content SEO will help your cannabis content rank higher on various search engines such as Google, Bing or AskJeeves.

Technical SEO

Technical SEO refers to website and server optimization tactics that help search engines index your site more effectively and improve search rankings.  One example of this is making sure your website is efficient and streamlined.  A clunky, poorly maintained website will hurt your SEO ranking. Simply put, technical SEO lays a strong foundation to give your website content the best chance it can have to rank for relevant cannabis keywords and phrases.

On the content side, one effective strategy is to implement a digital marketing tactic called SEO copywriting.

SEO Copywriting

SEO copywriting involves writing website content that contains semantically related phrases of your web page’s focus keywords. Including these keywords and phrases in useful, informational blogs is key to a successful long-term strategy.  Regularly publishing this sort of content is important as well.  This helps your website stay relevant, authoritative and trustworthy.

What type of blog content should you create?  Besides being informational, your blog content should answer questions your target customers have about cannabis and the cannabis industry.  This makes the information you provide relevant and useful. These questions can be found by performing detailed keyword research using paid SEO tools.  This will give you a high level of specificity in your results.

Conclusion

Advertising cannabis and cannabis related services and accessories can be a challenge given the complex and evolving regulations.  Digital marketing of cannabis can be even more difficult, though it can be done legally and productively if the right strategies are implemented.

For more information on any of the above, or if you are seeking legal advice on advertising cannabis and cannabis services and accessories, feel free to reach out to Alon Segev, attorney at Segev LLP.  Segev LLP has extensive experience advising businesses in the cannabis industry.  Alon can be reached directly at [email protected] or 604-629-5406.

Disclaimer: 

The above blog post is provided for informational purposes only and has not been tailored to your specific circumstances. This blog post does not constitute legal advice or other professional advice and may not be relied upon as such. If you require legal advice, you should contact a qualified lawyer.