UPDATE - 08.06.2018
After a year of going back and forth with the powers that be, including the Attorney General, the owners of Herbn Elements have entered into a Stipulated Settlement Agreement with the WSLCB as of late July 2018. The agreement entails that we waive the right for any further administrative review regarding the advertising violation, and that we have 28 days to correct the non-compliant sign “so that a depiction of a marijuana leaf will no longer be visible."
As of this writing, we have already started the process of covering our sign, and eventually plan to replace it with a new design. The Herbn Elements pot leaf logo will live on inside the shop, as it will remain visible on our uniforms and branded paraphernalia items.
Let’s be clear: nobody in the marijuana industry wants children to get their hands on cannabis products. We’re not conspiring in dark rooms full of bong smoke, fingertips together like Mr. Burns, and plotting ways to poison the youth with the devil’s lettuce; quite the opposite, we all recognize our privilege of being able to produce and sell a Schedule I drug with the blessing of the state, so we gladly work with the Washington State Liquor and Cannabis Board (WSLCB) to ensure we’re doing everything we can to prevent sales to minors (and where possible, make cannabis products seem less appealing to children). For example, I-502 law mandates that edibles must be packaged so that they're "heat sealed with no easy-open tab, dimple, corner, or flap as to make it difficult for a child to open,” but after edibles leave our shop, it’s of course the responsibility of adults to ensure that edibles are stored out of reach of kids, just as they would do with pharmaceuticals, alcohol, tobacco, firearms, and laundry detergent pods.
Like we’ve seen over the decades with alcohol and tobacco, Washington’s advertising regulations for marijuana are becoming increasingly more restrictive. Though it’s all arguably for the benefit of our youth, the constraints make marketing efforts infinitely more challenging, especially since more stringent rules were adopted in July 2017. Before we get to the latest curveball, here’s a quick review of the previous advertising restrictions Washington cannabis businesses had to work within:
- Advertisements may not contain language that is false or misleading (duh)
- Advertisements may not contain any statements about curative or therapeutic uses for cannabis
- Advertisements may not depict a child or person under legal age
- Advertisements may not depict objects that suggest the presence of a child, like toys
- Advertisements may not be "designed in any manner that would be especially appealing to children or other persons under twenty-one years of age”
- Advertisements may not appear “within one thousand feet of the perimeter of a school grounds, playground, recreation center or facility, child care center, public park, library, or a game arcade admission to which it is not restricted to persons aged twenty-one years or older”
- Promotional items like giveaways, coupons, or free swag are banned. Medically endorsed shops may not give away or donate cannabis to registered patients.
- All advertisements must contain the warnings a) "This product has intoxicating effects and may be habit forming,” b) "Marijuana can impair concentration, coordination, and judgment. Do not operate a vehicle or machinery under the influence of this drug,” c) "There may be health risks associated with consumption of this product," and d) "For use only by adults twenty-one and older. Keep out of the reach of children."
That wasn’t even a comprehensive list of the advertising regulations, but those bullet points should drive home the fact that Washington’s marijuana businesses are already limited when it comes to marketing their products or services. These rules are all more-or-less reasonable, but last year in July, the state approved new rules that change everything (senate bill 5131 passed with a vote of 48-0); in addition to banning movie or cartoon characters that may be appealing to children, it’s no longer permissible to depict plants or products in advertisements or store signage. Yes, you read that right: it’s illegal to use pot leaves or any images of pot products (buds, joints, oil, etc) to advertise pot.
According to our local NBC affiliate, bill sponsor Senator Ann Rivers had said, "the regulation is akin to restrictions put on alcohol and tobacco industries, and anyone who thinks that marijuana is different is 'naïve to think otherwise.’” To address her attempt at making a point— as this wouldn’t be the Herbn Elements blog if I didn’t make some sort of alcohol analogy— this is the equivalent of beer companies being prohibited from depicting bottles, pint glasses, cans, hops, or beer itself in any of their ads. It’s not exactly apples to apples.
Even marketing professionals and critics of the policy change can recognize that the restraints may only encourage creativity on behalf of marijuana marketers; many producers and retailers have built successful brands without pot leaves in their branding. Similar to how Hugh Hefner’s centerfold photos famously implied the presence of a man in the background (like a pipe on a table, or a tie hanging from a coat rack), perhaps cannabis companies can imply the presence of the product, maybe with smoke or an empty bong bowl or something?
Nah, dawg; the state already thought of that. According to the new rules, the "depiction of a marijuana product means an image or visual representation of usable marijuana, marijuana-infused products, or marijuana concentrates, or an image that indicates the presence of a product, such as smoke, etc.” Bummer.
There’s not much that can legally go into cannabis advertisements now aside from a brand name, contact information, and stock photos of people smiling (unless smiling is considered to be appealing to children). We’ve been seeing print advertisements lately with gags like “insert pot leaf here” or “censored by Washington state.”
The Saga of The Herbn Elements Sign
This change in cannabis advertising regulations also affects signage for pot shops. In our case, we’re at risk of losing one of our greatest assets: our iconic sign with the giant pot leaf. Years ago, Herbn Elements co-owners Seth and David Sligar received written permission and design approval from the WSLCB and the city of Seattle to build the sign. The approval process took at least 2 months from start to finish.
When the new rules went into effect, we went back and forth with the WSLCB for several months before taking action to remove or cover the sign (bear in mind that public hearings for this rule making process continued through January 10, 2018, all while we were still being asked to comply). We first asked the WSLCB to define the "depiction of a marijuana leaf," and also inquired if there's a review board at the WSLCB that approves advertisements (as they have in place for edibles). It was later agreed upon by multiple regional [WSLCB enforcement] lieutenants that our sign indeed depicts a pot leaf. Hey, it was worth a shot.
We then responded to the WSLCB, arguing that we already performed our due diligence (getting permission from local and statewide governing bodies) before erecting the sign, asking that it be "grandfathered in” for that reason. Both the state and the city agreed at the time, but unfortunately the sentiment was short-lived.
The next time we heard back from the powers that be, we reminded them of the First Amendment of the United States Constitution, which protects commercial speech. Historically, there have been several court cases relating to the [un]constitutionality of laws preventing certain content in signs:
- Bates v. Arizona State Bar (US Supreme Court, 1977) 433 US 350: The US Supreme court overturned a law banning attorneys from advertising, saying that advertisements are “commercial speech” and are entitled to the same first amendment guarantees as communication by individuals.
- Collier v. City of Tacoma (1993) 121 Wn 2d 737: The court ruled that government may impose reasonable “time, place and manner” type restrictions of commercial speech, but the regulations must be “content-neutral” (which means if the regulation is referring to what the sign says or shows— not just where, when, and how the sign is posted— it may be invalid).
- 44 Liquormart, Inc v. Rhode Island (US Supreme Court 1996) 517 US 484: When the state of Rhode Island tried to ban pricing in liquor advertisements (claiming that prices would encourage drinking), the US Supreme Court ruled that the First Amendment "protects the dissemination of truthful, non-misleading commercial messages about lawful products or services.”
There is a legal concept called strict scrutiny in which government can basically prevent ads for illegal products and activities, but considering we’re in Washington state and marijuana is legal here— as opposed to Idaho, for example, where a sign with a pot leaf could get struck down under strict scrutiny because selling or possessing cannabis is still completely illegal there— that concept wouldn’t hold up in court because the state can’t regulate and collect tax revenue from a Schedule I controlled substance and simultaneously restrict the content of signs advertising the drug. To this point, we’re confident that we would win if we [paid upwards of $20,000 in legal fees and] took this to court, but the state could then pass even tighter restrictions on the size and placement of signage.
As of this writing, the state has not provided an answer to our question of constitutionality; we’re choosing not to cover the sign, opting to accept a citation, and planning to challenge the constitutionality of the violation.
We wrote this article to keep everyone up to date on one of the most recent marketing challenges in Washington’s cannabis industry, as well as to help to answer our customers' questions about why our sign might go away. Marijuana business owners, industry workers, and customers may not always agree with seemingly heavy-handed rules like these, but we understand and appreciate the significance of a well-regulated recreational market, and we hope that future regulations are firmly rooted in reason and constitutionality.
Article by Ramsey Doudar; an in-house marketing and social media strategist at Herbn Elements. Ramsey's perspective is influenced by 1.5 years of budtending, 5 years as a cannabis industry marketing professional, and 10+ years of being a super picky medical patient.