ABSTRACT
Cannabis marketing and advertising is a broad topic, covering subtopics from health care law and FDA regulations, to digital privacy laws and aiding and abetting violations of the Controlled Substances Act. Cannabis and hemp advertising are regulated differently – with the FDA now overseeing hemp advertising in the context of health-related claims, while cannabis remains federally illegal and not overseen by federal regulators. Advertising can be a particularly challenging area for cannabis operators given that “compliance” with local or state advertising regulations has a subjective element and enforcement is inconsistent. Even operators making conscientious decisions as to ad content and placement, for example eschewing the use of cartoons or similar images appealing to children, can face sanctions from officials reaching the opposite conclusion. Subjective enforcement is also evident across social media platforms, where one company’s cannabis content can inspire thousands of “likes” and “followers” while another company sees its account terminated for nearly identical images and messaging.
