For more than a year, businesses in the medical cannabis industry in Maryland have been waiting for regulatory guidance on what they can and cannot do when advertising their products and services. On December 6, 2018, the Maryland Medical Cannabis Commission (MMCC) finally approved new regulations, but the outcome is not the one the industry had hoped for.
In a unanimous vote, the MMCC approved strict regulations that prohibit advertising on billboards, radio, and tv. Advertising is also prohibited in print publications such as newspapers and magazines, unless the publisher can prove that at least 85% of its readers are 18 or older. Advertising on Internet sites is only permitted if the site includes an age verification page, which significantly limits the ability to use online advertising. In addition, the use of advertising leaflets and flyers in most public and private spaces is not allowed.
“These regulations essentially prevent advertising by medical cannabis companies,” says Eric Sterling, a former member of the MMCC, one of the authors of the original regulations legalizing medical cannabis in Maryland, and current executive director of the non-profit Criminal Justice Policy Foundation. “There are a large number of ads on tv for all types of drugs with all kinds of side effects. Why are the regulations for advertising medical cannabis different than those for other pharmaceutical products?”
Sterling adds, “The Supreme Court has recognized that advertising and commercial speech are protected by the First Amendment, so these new regulations are unconstitutional. The state of Maryland has recognized the medical value of cannabis by legalizing it, so they can’t argue that advertising medical cannabis products is inherently deceptive. I’d be curious to see what facts the MMCC would point to that suggest banning medical cannabis ads is in the public interest. I don’t see the basis for such restrictive regulations. It’s a blunderbuss approach to a nuanced, sophisticated problem.”
The new regulations have raised several concerns from members of the medical cannabis industry, most importantly concern about the restriction of access to information that patients need to find and connect with medical cannabis recommending healthcare providers and dispensaries.
Mackie Barch, chair of the Maryland Medical Cannabis Wholesale Trade Association (CANMD) and president of Culta, a fully integrated Maryland medical cannabis business based in Baltimore, has noted that some amount of regulation is good for consumer protection but banning advertising continues the longstanding stigma surrounding cannabis, even though the recommendation and use of medical cannabis is legal in Maryland.
Before the new advertising regulations are finalized and approved, they will be brought before the Joint Committee on Administrative, Executive, and Legislative Review (AELR) during Maryland’s 2019 legislative session, where it is expected that industry stakeholders will voice their concerns in an effort to prevent the restrictive regulations from being enacted.
While healthcare practitioners and business owners in the medical cannabis industry await the outcome of the AELR review, the best practice is to consult your legal advisor to determine how to handle advertising in Maryland for your medical cannabis business in the interim.
“This new industry does need guidance vis-à-vis advertising,” notes Sterling. “Perhaps the best place to start is to think about being a good neighbor to the communities that surround your business or practice. The nature of the ads is important. This is a medicine, so the ads should be professional, avoid making unsupportable health claims, and shouldn’t look like they’re trying to appeal to teens or recreational users by including visuals like cartoons.”