Cannabis businesses face many challenges in branding and marketing their products. The continuing illegality of cannabis products under federal law excludes these businesses from many of the intellectual property protections afforded to other businesses in other industries. Further, many cannabis businesses entering new markets face challenges in educating potential clients on the differences between types of cannabis products and the particular attributes of their specific offerings.
In Kentucky, Senate Bill 47 (2023) and related regulations generally prohibit all advertising of medical cannabis products except for specific, restricted formats. Kentucky cannabis licensees should begin planning now on how to comply with these restrictions as part of their overall business operations.
Outdoor Signage
In Kentucky, cannabis businesses will be permitted to place appropriate signs on their property. However, cultivators, processors, and producers are not permitted to display any signage, logos, or products outside of their facilities that would alert the public to the fact that medicinal cannabis is grown, processed, produced or stored at that facility.
Websites and Social Media
Licensees may maintain websites and social media accounts that provide:
- A description of the business and services offered;
- A listing of products, including product information, prices and compliant promotional inducements;
- Educational materials;
- Certificates received from safety compliance facilities related to their products; and
- Contact information for the cannabis business.
Cultivators and processors may also include a listing of the dispensaries where their products are sold.
In addition, licensees must take reasonable steps to ensure that minors cannot access their website or social media accounts. They must also refrain from any statement targeting minors, including the use of cartoons, toys or similar images.
Other general restrictions include making false or deceptive statements; promoting transport of products over state lines; or promoting products in a manner that does not provide an educational benefit. In addition, each website and account must conspicuously state that “Medicinal cannabis is for use by cardholders only” and that recipients of products should “Keep out of reach of children.”
Other Advertising
Licensees may directly promote their services and products to other medical cannabis businesses. Such advertising includes safety compliance facilities and their testing services. Care should be taken to ensure that such direct promotion is only distributed to other cannabis businesses and will not be discoverable by the general public.
Enforcement
Licensees should carefully review the regulations on advertising and branding as they continue to plan for their launch of operations The Kentucky Office of Medical Cannabis (OMC) is authorized to investigate violations of the statutes and regulations applicable to Kentucky medical cannabis businesses, including their conformity to the marketing and branding restrictions. If a cannabis business believes their advertising falls within the parameters of the statutes and regulations, they may appeal any decision by OMC through administrative processes and, if necessary, to an appropriate court of Kentucky.
If your business needs assistance developing plans for compliant marketing and advertising, Dentons can assist with putting together SOPs and reviewing draft advertisements or mock-ups.
