As legal weed businesses struggle against the black market, one of their few advertising options could be on the chopping block
Ian Spiegelman, Los Angeles Magazine
Five years after Californians voted overwhelmingly to legalize recreational pot use for adults, the debate rages on—this time over whether the purveyors of legal weed may continue to advertise their wares on billboards along the state’s roadways.
Two Assembly members have introduced dueling bills on the subject, one aimed at moderately restricting where licensed sellers can publicly market cannabis and its accouterments, while the other seeks an outright ban on any marijuana-related ads that can be seen from a California highway.
The ban bill, AB 273, was proposed by Thousand Oaks Assemblywoman Jacqui Irwin in January. Although voter-approved Prop 64, which legalized marijuana, includes measures to prevent cannabis advertising from reaching minors, Irwin fears the proliferation of pot billboards will make young people more likely to use the substance.
“This is a very new industry and I don’t think that we should let the advertising get out of hand,” she tells Politico.
Assemblyman Bill Quirk of Hayward introduced the opposing bill, AB 1302, last month. If passed, it would discourage interstate sales—still a big Federal no-no—by making it illegal to place cannabis advertising within 15 miles of a border on highways exiting the state while still allowing it on most California roads.
Quirk already came out as a friend of the industry when he introduced a bill that would make it illegal for most state employers to test job applicants for marijuana. He says that with an estimated 80 percent of all California pot sales being made illegally, overzealous prohibition of advertising counteracts the purpose of Prop 64 by giving illicit dealers a further advantage over marketers who obey the law.
And while you can hardly click a link without YouTube, Google, or Facebook blasting you with ads for booze, no-money-down real estate scams, and commercials for “pooping habits that keep you thin,” cannabis pitches are still largely barred from those and most other online platforms.
“The legal industry is in trouble because they have to compete with this low-overhead illegal market,” Quirk says. “That’s the problem and there’s no guarantee that the legal market survives, frankly, at this point unless they can out-compete the illegal market.”
The law already limits physical and digital ads to areas where it’s reasonable to expect that at least 71.6 percent of people who see them will be 21 and over. Additionally, advertising on city streets within 1,000 feet daycare centers, K-12 schools, and playgrounds is not allowed.
Both sides agree, however, that existing law is murky on the subject of billboards. Where they part ways is over Prop 64’s original intent. The proposition’s text bans pot billboards along all highways that cross the border but, in January 2019, the Bureau of Cannabis Control interpreted the law as being meant to discourage sales across state lines and issued regulations outlawing billboards within 15 miles of the border.
San Luis Obispo father Matthew Farmer challenged that view last November when he went to court upset that a billboard for pot delivery service Eaze was seen by his kids.
“It takes 3,240 tons of fuel to reach the moon,” the sign read. “Or 1 gram of Sour Diesel.”
A judge agreed with Farmer, ruling that the BCC had overstepped its authority and that its regulation disregarded the law, forcing cannabis companies to start tearing down their billboards.
“Billboards are very important for revenue and for letting adults know where to find legal products,” Eaze senior director of communications Elizabeth Ashford told San Francisco Weekly at the time. “Most online platforms ban cannabis ads. While we’d prefer to reach adult consumers through targeted digital advertising, tech platforms make this nearly impossible.”
Still, the ruling in that case failed to address the question of intent.
For Irwin, there is no question.
“We could argue about the rights of the billboard people and how they need to make money,” she said. “We could argue about the rights of the cannabis companies and how they need to make money, but this was the proposition that the people of California voted for.”
Quirk is equally adamant, saying, “This is not enticing children, it’s just giving a chance for the legal industry to outperform the illegal industry, which has lower prices and convenient delivery to middle schoolers. We’re much better off with the legal industry and if you want to hobble the industry some more that’s not fine with me.”
Pamela Epstein, general counsel and chief regulatory officer for cannabis company Eden Enterprises, feels that because the issue of legal pot is a new frontier, the billboard battle is “indicative of the normalization process.”
“I think that cannabis is to those who work in the industry as normal as going and buying an apple at the store,” she tells Politico. “But it is a reflection that as a larger society we are still moving through the educational process and there’s still a good amount of miseducation and fear of the unknown.”