Marijuana businesses in Colorado are fresh off their best year on record, during a global pandemic, no less. With an astonishing 2.2 billion dollars in sales in 2020, generating nearly 388 million dollars in tax revenue for the state now is the time to earn your share of that market.
However, the Colorado Marijuana Enforcement Division has set forth specific rules that must be adhered to regarding how Marijuana businesses may advertise. Thankfully they are largely common-sense restrictions on placement and audience.
The Letter of The Law
First, we must familiarize ourselves with the rules as they are written. Colorado Code of Regulations Section 212-3 sets forth Colorado’s Marijuana rules in full. Specifically, we need to look at part 3 in the 700 series on page 153. We can dispense with the legal jargon and ignore the “basis and purpose” statements.
In all, this series establishes (at this time) 11 rules that apply to all advertising for marijuana businesses in colorado. They are, in layperson’s terms:
- No false, deceptive, or misleading statements.
- “Minor” is defined as under age 21 for Recreational Marijuana Businesses and under 18 for Medical Marijuana Businesses
- “Branding,” as used in these rules, includes any taglines your brand uses, whether or not they are trademarked. Branding may not be used to target Minors.
- Marijuana Businesses may advertise on Television, Radio, Print Publications, or via The Internet as long as 71.6 percent of the target audience is reasonably expected to be above the age of “Minor” for your specific business type. Further, “Advertising” is proposing a commercial transaction or engaging in commercial speech.
- You may not assert in any advertising that your products are safe because the State Licensing Authority regulates them.
- You may not claim in any advertising that your products are safe because a Regulated Marijuana Testing Facility has tested them.
- Marijuana Businesses may not advertise on any outdoor sign within 500 feet of schools, places of worship, or playgrounds. Further, Marijuana Businesses must comply with all local ordinances and state laws regarding advertising in addition to the rules prescribed here.
- Marijuana businesses may not use in any form of advertisement any content that explicitly targets “Minors” as defined here. This includes things such as Cartoon Characters, fruits, and candies.
- Marijuana Businesses may not use any form of direct advertising that is “location-based,” such as a cellular phone. The exception to this rule allows advertising on apps installed by the device owner, who does not qualify as a “Minor,” and it includes an easily accessible and permanent “opt-out” option.
- Marijuana Businesses shall not use unsolicited “pop-up” ads in any fashion.
- Marijuana Businesses may sponsor charitable, sporting, or similar events. However, they may only advertise at or in connection with these events if the audience meets the exact demographics requirements as Rule 4.
The Age Requirement Elephant in The Room
Things get technical at points, but these are straightforward rules. Many of the regulations prescribed are common-sense measures that any conscionable business should be doing already.
The essential thing anyone engaging in Marijuana Advertising and Marketing in Colorado should know is the demographics rules. Wherever you advertise, in whatever form it takes, you must reasonably believe that at least 71.6 of those who will view the advert are over the age of “Minor.”
Viewership demographics data is available for most advertising mediums, so much of our work has already been done for us. MarketingCharts.com put together this excellent graph on the mean viewer age for various television sources, as collected by Nielsen. As you can see, those who would be a “Minor,” as defined by these rules, certainly don’t reach the 28.4% viewership threshold.
Another reassuring bit of data is the actual age demographics for the state of Colorado itself. According to data from the Colorado State Demography Office, not one county in Colorado has a population of 18 or younger that exceeds the 28.4% figure. There is no precise figure for those under 21; however, we can combine those under 18 with roughly 40% of the 18-24 category. If we look over the data, we see that only counties with an outsized population of youth and young adults exceed this limit.
Marijuana Advertising and Targeting
Rules 3, 4, 8, and 9 all relate to advertisements not showing where they may be seen or specifically targeting “Minors.” As I showed in the available data for age demographics, that part is quite simple.
In reality, most mediums you will be advertising your brand or products will allow you to target specific age groups. The only way you can run afoul of these particular rules is if you specifically target children or use depictions of cartoon characters or the like. In that rare case, you deserve all the law has in store for you.
Furthermore, the rules state you must reasonably expect your viewers to meet the requirement. We can never know with certainty who is on the receiving end, but we can at least be secure in the knowledge that we have done our best. Population statistics are on our side, and digital advertising allows targeting or excluding age groups.
What Other Important Considerations Are There?
Rules 5 and 6 prohibit you from claiming your products are safe simply because you comply with state laws, and Rule 1 forbids any false, misleading, or deceptive statements. While these sound obvious, in an industry that is based on the purported benefits of Marijuana and its compounds in various forms, it is easy to run afoul.
Nothing prohibits you from espousing the safety of your methods, ingredients, handling, etc. You cannot claim the overall finished product does something or is in some way certifiably safe. Those standards in Marijuana Medicine haven’t been established.
Know Your Local Laws
The last piece of information you should know before you begin is that local-level rules apply too. This means both rules about Marijuana and rules about advertising in general. A simple Google search for “marijuana rules and regulations in [city/county]” should get you started.
And Remember, these rules can and will change often—check in on the rules postings from the Colorado Marijuana Enforcement Division here. We are still navigating new territory, and it will take time and patience on everyone’s part to see it through.
