On Friday, one of Portlands best ad agencies, Sockeye, launched a video advertising campaign for a marijuana beverage. The beverage is called Legal, manufactured by one of our long-time clients, Mirth Provisions. While we seldom blog about clients, the catchy ad (which quickly rang up over 7,000 views) got people talking about the nexus between pot and advertising. Among these discussions were write-ups in The Oregonian and the The Portland Mercury. The latter story asserts that the Legal spot is the first ever commercial for a cannabis edible.
We have examined the challenges for industry entrepreneurs when it comes to marijuana advertising, including one year ago today, when we wrote about the ever first television commercial for a cannabis product. That commercial was scheduled for broadcast on a Denver-based ABC affiliate, but pulled at the last second. To our knowledge, it has never graced the airwaves. In the relevant blog post, we explained that:
The Federal Communications Commission regulates and licenses television broadcasters, issuing licenses on an annual basis. There is no FCC regulation expressly prohibiting a televised advertisement of cannabis products in states with legalized cannabis. The FCC, however, renews broadcasters licenses each year based, in part, on whether they served the public interest during the preceding year. It could be more difficult to satisfy this criterion if broadcasters (arguably) committed a felony by violating Section 843 of the Controlled Substances Act.
At the time, the FCC had not weighed in on cannabis. For better or worse, that is still the case today. Without guidance, broadcasters can only guess as to how interested regulators will be in these ads even if states like Colorado and Oregon do not prohibit them. Perhaps for this reason, the Legal ad is currently published only on Youtube, and it has not run on any traditional television channels.
In Oregon, advertising for marijuana falls under Oregon Liquor Control Commission (OLCC) purview. As such, OAR 845-025-8040 (Advertising Restrictions) gives some basic parameters as to what pot ads cannot do, including: contain misleading statements; target minors or use cartoonish images; encourage transport across state lines; make claims as to health effects; display consumption of marijuana items; etc. All of these are similar to advertising strictures for alcohol and tobacco, although the display consumption prohibition goes further than regulation for alcohol ads.
The following section, OAR 845-025-8060(2) also provides that a licensee may not utilize television, radio, billboards, print ...
