Now that the Office of Cannabis Management has filed regulations for the Conditional Adult-Use Retail Dispensary (CAURD) License, these licensees are positioned to make New York’s first legal cannabis sales before the end of 2022. Once sales are legal, many companies will be pursuing marijuana marketing and advertising, in accordance with any applicable regulations. But just what kind of ads are or will be permitted has been somewhat of a question mark. As this is a volatile space at the moment, it is essential that cannabis ads adhere to local and federal laws.

As we reported just last month, it seemed that Congress had advanced the effort to allow television and radio stations to begin accepting cannabis ads in states where medical and/or adult use is legal. In fact, the House Appropriations Committee advanced the Financial Services and General Government appropriations bill for fiscal year 2023, which includes provisions that would eliminate the ability of the Federal Communications Commission (“FCC”) from taking administrative action against broadcasters for accepting cannabis ads in states where use has been legalized.

However, the Senate Appropriations Committee released its FCC budget proposal, which fails to include any provisions addressing cannabis ads. Some industry experts have described this effort as a “setback” for the future of cannabis ads on TV and radio. Despite this reported hurdle, a Democratic Senator from New Mexico, Ben Ray Lujan, recently introduced a bill that would permit TV and radio stations to accept advertising for legal cannabis products, as long as the station is licensed in a state that allows the advertising of medical or adult-use cannabis.

Where Does This Controversy Leave Cannabis Ads?

The proposed bill, also known as the Secure and Fair Enforcement (“SAFE”) Advertising Act, would allow broadcasters to accept cannabis ads in accordance with state laws. Among other things, the bill “would prohibit the FCC from rejecting a license renewal, license transfer, or require and early renewal application if a station opts to air cannabis ads from a legitimate seller.” Clearly, there are parties on each side of the issue and the legality of running cannabis ads on radio and television is still in a state of uncertainly.

This makes it even more important that companies use great caution when attempting to market or advertise cannabis and marijuana products. Accordingly, marketing entities certainly should consult with an experienced marketing attorney to ensure that their cannabis ads comport with applicable state and federal regulations.