05/25/2018

New rules and opportunities with e-cigarette, medical marijuana advertising

By Dennis Hetzel, Executive Director

Starting in August, federal regulations go into effect that clarify how e-cigarettes can be advertised. Meanwhile, we urge all members to review the opportunity that medical marijuana suppliers present in Ohio – with some caveats that I’ll review below.

Medical Marijuana

Some publications already have begun accepting advertising related to medical marijuana, which will be available to Ohio citizens with prescriptions later this year unless lawsuits slow the process down.

Broadcast and outdoor advertising is banned, as well as many types and forms of external signage. Thus, even though there are major restrictions on all marketing efforts, this can be an opportunity for local newspapers since cannabis outlets obviously must engage in marketing.

ONMA members that decide to accept such advertising can work with local outlets on print and digital campaigns.  You also could help them with website management and promotion. Websites have to only be accessible to those who certify they are 18 or older.

At AdOhio, we have established a relationship with the National Cannabis Industry Association of Ohio and offered any assistance to their members who are interested in print and digital marketing.

Before you jump into this, there are a number of caveats to consider. Here are a few:

• Print advertising could, in theory, put your postal permit in jeopardy since marijuana remains an illegal substance under federal law -- in the same category as the most dangerous drugs. Our research shows that, thus far, no postal permit has been taken away. Instead, what happens is that the local postmaster may or may not file a report with the USPS. No reports to our knowledge have resulted in action, and there are ongoing restrictions passed by Congress that block the use of federal funds to interfere with states’ marijuana programs.
• All advertising is subject to approval in advance by the Ohio Dept. of Commerce. Language that promotes any use other than the specific uses of medical marijuana under the law will not be acceptable.
• Avoid all slang terms.
• We would advise against putting ads in any parts of the paper or online in areas targeted to an audience under 18.
• No ads will be approved with imagery that could target or attract children.

The Ohio Administrative Code rules on marijuana advertising can be found at this link.

If you do not plan to accept any marijuana-related advertising it would help us to know this at AdOhio. In that case, we will not place you in any quotes to prospective clients for regional or statewide advertising. Please email me, dhetzel@ohionews.org, or Walt Dozier, wdozier@adohio.net, if that’s the case.

As always, if you have more detailed questions, you can use our legal hotline as an initial point of contact. Email me at dhetzel@ohionews.org or call 614-486-6677.  This can help you determine if you need to involve local counsel or other executives in your company before making a decision on whether to accept such advertising.

E-Cigarettes

Starting on Aug. 10, the U.S. Food and Drug Administration requires a warning on advertisements for e-cigarettes. This also applies to roll-your-own tobacco, pipe tobaccos, hookahs, gels, etc.

The following comes from the FDA:

Advertisements include print advertisements and other advertisements with a visual component (including, for example, advertisements on signs, shelf-talkers, Web pages, and email). The required warning statement on advertisements must:

• Appear on the upper portion of the advertisement within the trim area;
• Occupy at least 20 percent of the area of the advertisement (warning area);
• Be printed in at least 12-point font size and ensure that the required warning statement occupies the greatest possible proportion of the warning area set aside for the required warning statement;
• Be printed in conspicuous and legible Helvetica bold or Arial bold type or other similar sans serif fonts and in black text on a white background or white text on a black background in a manner that contrasts by typography, layout, or color, with all other printed material on the advertisement;
• Be capitalized and punctuated;
• Be centered in the warning area in which the text is required to be printed and positioned such that the text of the required warning statement and the other textual information in the advertisement have the same orientation; and
• Be surrounded by a rectangular border that is the same color as the text of the required warning statement and that is not less than 3 millimeters (mm) or more than 4 mm. "WARNING: This product contains nicotine. Nicotine is an addictive chemical."

You can find more information at this link.