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The U.S. House of Representatives this week passed a bill that would permit cannabis advertising on broadcast television and radio stations. The legislation is included as part of the Fiscal Year 2023 Financial Services and General Government appropriations bill, which was passed by lawmakers in the House on Wednesday.

Under the provisions of the appropriations bill, the Federal Communications Commission (FCC) would be barred from using appropriated funds to deny a broadcaster a license renewal or sale application for airing cannabis advertising in jurisdictions that have legalized marijuana. The FCC would also be prohibited from requiring a station to file an early license renewal application for broadcasting cannabis ads.

Current regulations allow the FCC to revoke a license from broadcasters that air advertisements for federally illegal products including weed, even in states that have passed laws legalizing cannabis. As a result, cannabis businesses are limited to advertising in other forums including print newspapers and magazines, online, billboards, cable television, satellite radio, and social media. Alex Siciliano, a spokesman for the National Associations of Broadcasters, said on Wednesday that the legislation passed in the House this week levels the playing field for cannabis advertising.

“For too long, local broadcasters have been stuck in a regulatory purgatory because of conflicting federal and state cannabis laws,” Siciliano said in a statement. “Today’s passage marks an important step towards allowing broadcasters to receive equal treatment for cannabis advertising that many other forms of media have enjoyed for years. While we are pleased to see the House act, broadcasters will continue to work with policymakers for a permanent resolution to this competitive disparity to the benefit of consumers.”

Broadcasting Groups Applaud Legislation

The spending bill was passed by the House Appropriations committee in June. The legislation gives broadcasters access to the growing market for cannabis advertising, which is expected to total $18.5 billion this year alone.

“We are pleased to see that this bipartisan language has advanced in the House today,” Siciliano said in a statement late last month. “As the vast majority of states have legalized cannabis in some form, today marks a long overdue step toward finally allowing broadcasters to receive equal treatment regarding cannabis advertising that other forms of media have had for years.”

David Donovan, president of the New York State Broadcasters Association (NYSBA), thanked lawmakers in the House “for recognizing the unfairness of the present situation with respect to cannabis advertising.”

“The provision in this House appropriations bill is a major step forward for leveling the playing field for local broadcasters,” Donovan said in a statement from the broadcasting industry group. “We believe the law of the state in which a station is licensed should determine whether a station can accept cannabis advertising if they so choose. We look forward to working with members of Congress and the Administration to help restore parity between local broadcasters and other media outlets.”

“We believe the law of the state in which a station is licensed should determine whether a station can accept cannabis advertising if they so choose,” Donovan added. “We look forward to working with members of Congress and the Administration to help restore parity between local broadcasters and other media outlets.”

Before the bill becomes effective, it must still be passed by the Senate and signed into law by President Joe Biden. The NYSBA noted that gaining Senate approval for the legislation may be a challenge.

“The appropriations process is notoriously complex, which means the bill may get stalled. Congress is likely to adopt an interim budget through a continuing resolution. At some point, perhaps after the mid-term elections, there will be a final vote. Even if it passes, the legislation is not a ‘silver bullet.’”

Because the cannabis advertising provisions were passed as part of an annual appropriations bill, the prohibition on the FCC taking action against broadcasters for airing weed ads would only be in effect for one year, beginning on October 1. For the marijuana advertising terms to continue, the appropriations language must be reauthorized each year.

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New York state regulators voted on Wednesday to approve draft rules for the packaging and marketing of legal cannabis products. The proposed regulations establish parameters for the sale of recreational weed products, which are expected to go on sale by the end of the year following the legalization of adult-use cannabis by state lawmakers in 2021.

Under the draft regulations from the New York Cannabis Control Board, companies will be permitted to advertise their products via television, radio, social media and other platforms. But the rules also include strict provisions designed to protect children from being influenced by cannabis marketing.

“Protecting public health, reducing harm and promoting sustainable industry practices are key components of legalizing cannabis for adult use and I look forward to considering these regulations as we develop the industry,” Cannabis Control Board Chair Tremaine Wright said in a statement quoted by the New York Post. “We are committed to building a New York cannabis industry that sets high standards for protecting children and keeping products safe and sustainable.”

Rules Designed To Protect Kids

Labels for cannabis products must include the serving size, potency, ingredients, and directions for usage and storage. Packaging and advertising that contain cartoon characters, bubble lettering, neon colors, references to candy, or other elements likely to appeal to people younger than 21 years old are not allowed.

The regulations also forbid the use of endorsements from celebrities who appear to be younger than 21 and ban the use of common terms in the cannabis culture lexicon including “weed,” “pot,” “stoner,” and “chronic.” Misleading claims of health benefits and indications that the product is “safe” or “organic” are also prohibited, as are actual images of marijuana or people vaping or smoking.

Katrina Yolen, chief marketing officer of multistate cannabis operator Acreage Holdings, applauded New York regulators for updating the guidelines for cannabis marketing and advertising in advance of the launch of adult-use sales.

“Recognizing that cannabis operators need to be able to communicate better with consumers to educate, inform and build awareness about the benefits of cannabis is vital for the state and industry,” Yolen wrote in an email. “We look forward to supporting and working with the Office of Cannabis Management on the final guidelines over the coming weeks.”

All cannabis product packaging must include the state symbol of approval that includes the universal cannabis symbol with a cannabis leaf and the letters “THC,” plus an indication that the product is for consumers 21 and up and the New York state logo. The stipulated label is reserved for products that have been produced by licensed cannabis companies and lab tested for safety in accordance with state law.

Packaging for cannabis products must also be child-resistant, meeting standards that make the product difficult for a child younger than 5 to open. Additionally, the regulations require that cannabis advertising be no closer than 500 feet to schools, libraries, daycare centers, and playgrounds.

The draft regulations also call for a rotating series of warning labels to be placed on packaging for cannabis requirements, such as “Cannabis can impair concentration, coordination and judgment. Do not operate a vehicle or machinery under the influence of cannabis” and “Keep out of reach of children and pets.” 

Marketing Rules Set a High Bar in New York

The regulations forbid marketing and promotional tactics commonly used by companies in other industries. Price promotions, coupons, customer loyalty programs, and other discounts are not allowed under the rules.

In an email to High Times, Katelin Edwards, senior regulatory analyst at Simplifya, a regulatory and operational compliance software platform serving the cannabis industry, said that a particular aspect of New York’s regulations may prove to be especially burdensome for weed businesses.

“Although it is true that a NY cannabis licensee can advertise cannabis products, cannabis paraphernalia, or goods or services related to cannabis or cannabis products by means of television, radio, print, internet, mobile applications, social media and other electronic communication,” said Edwards, “the licensee has to have reliable evidence that at least 90%, unless otherwise determined by the Office, of the audience for the advertisement is reasonably expected to be twenty-one years of age or older.”

Edwards notes that the composition requirement is more stringent than most states that have legalized recreational pot, including Colorado, California, and New Jersey, where audience composition requirements that call for about 70% of the audience to be 21 and older are the norm.

“Getting reliable and up-to-date audience composition data to prove that at least 90% of the audience is reasonably expected to be 21 years of age or older may be challenging; especially when ‘reasonably expected’ is so ambiguous and the burden of proof is on the licensee.”

The new proposed regulations will now undergo a 60-day public comment period beginning on June 15 before coming up for a final vote by the board.

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