Imagine turning on your TV to watch a football game.
You can probably guess the kinds of products you’ll see advertised: cars, chips, soda, insurance, and—of course—lots and lots of beer.
But what if you tuned into the big game and saw a celebrity in an ad for… marijuana?
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It may not be as far-fetched as it sounds. With eight states now legalizing recreational cannabis, the industry is quickly becoming a big business. And big business means big marketing.
While most of the debate has focused on how to regulate the substance itself, the question of how to regulate marijuana marketing is a bit…well, hazy.
A Brief History of Advertising Drugs
There’s no faster way to make drugs boring than to prattle on about their regulatory history, so let’s just do this in three sentences.
Weed was legal. Then it became very illegal—and unpopular—in the 1930s. Now it’s slowly becoming more legal and public opinion is warming up a bit.
There, now that that’s out of the way, we can move to the fun part: advertising regulations!
No wait, don’t go. I’m being serious.
If you’re a marketing nerd like me—and if you’re still reading at this point, I’m assuming you’ve at least watched a few seasons of Mad Men—alcohol and tobacco advertising is fascinating. It’s steeped in weird history and things that make no sense.
You can think about advertising regulations like a spectrum, from tightly to loosely regulated. Where marijuana ends up on that spectrum is up in the air, but we can look to two other legal drugs as an indicator—alcohol and tobacco.
Tobacco falls on the “tight” regulation end of the spectrum (but it wasn’t always that way), while alcohol—surprisingly—lands on the looser side. The journey of how those drugs landed where they did gives us some clues about where cannabis might end up.
Alcohol and tobacco (or more accurately, the nicotine contained in tobacco) are both drugs, however they are also both exempt from the Controlled Substances Act in the United States. For the most part, the regulation of these drugs is left up to state governments. Even the US legal drinking age of 21 isn’t really a federal law. To make a long story short, the Feds just passed the National Minimum Drinking Age Act in 1984 that said if states don’t raise their drinking age to 21, they would lose out on boatloads of federal highway money, so everybody had to fall in line. Pretty clever.
Despite the fact that they’re both potentially dangerous (Group 1 carcinogens), alcohol and tobacco are both perfectly legal to use recreationally. Why? That’s tough to say. Alcohol’s been around practically as long as humans have, and some scientists think its acceptance comes from the fact that it’s super fun to go out drinking with your friends (scientifically speaking).
Tobacco, on the other hand, was widely used by indigenous people in the Americas. European colonists found out there was a whole lot of money to be made sending it back across the Atlantic, so that’s exactly what they did, and tobacco played a huge role in the development of the United States.
Besides a brief hiccup for alcohol in the early 20th century during Prohibition, both industries flourished and billion dollar brands emerged. Towards the middle of the century, scientists started realizing—despite how TOTALLY RAD it looked—just how bad smoking tobacco was for your health, and they started sounding the alarms. The tobacco industry fought back, disputing claims and stepping up their advertising to counteract new restrictions. Big Tobacco wasn’t exactly playing it safe either; they were practically daring lawmakers and the public to come after them. Who the hell thought a cartoon mascot fit for a cereal box was a good idea for hawking cigarettes?
And come after them they did. Tobacco suffered multiple courtroom defeats across the next few decades that put some major restrictions on how and where they could advertise.
Still, tobacco—and alcohol—are spending big dollars on marketing.
I know what you’re thinking: “That can’t be right. I see beer ads every time I turn on the TV, but I can’t remember the last time I saw a cigarette ad of any kind!”
And you’re right; there hasn’t been a television ad for cigarettes since 1971, when Virginia Slims aired the last cigarette commercial—exactly one minute before the federal ban signed by Nixon took effect. Later on in 1997, the Tobacco Master Settlement banned billboard and public transit advertising of tobacco—effectively giving Big Tobacco their last breath in traditional advertising.
So where is all that money being spent? Here’s where things get a bit sinister.
86% of tobacco marketing is spent on price discounting and coupons. Tobacco companies spend nearly $8 billion a year—four times what alcohol companies spend on marketing total—just to keep the price of cigarettes cheap and counteract tobacco taxes. This doesn’t sit well with public health advocates, as pricing is one of the most effective ways to curb smoking—especially among kids.
Why spend so much on price discounting? Usually, it’s to get people to try something new. Plenty of products have discount pricing campaigns to boost sales, but it’s particularly effective for services that result in repeat customers and are a real pain in the ass to quit—things like cable packages and magazine subscriptions. And smoking.
Predictable, recurring revenue.
Compared to tobacco, the government is remarkably hands-off with alcohol marketing. Most laws on the books deal with mislabeling or making false claims about the product—something just about every consumable good is subject to. In fact, the industry is mostly self-regulated when it comes to advertising.
Three industry trade groups—the Beer Institute, the Wine Institute, and the Distilled Spirits Council of the United States—created their own set of advertising standards that members are expected to comply with. These include rules like not depicting illegal or irresponsible behavior, no lewd content, and only advertising where at least 71.6% of viewers are expected to be of legal drinking age. Why 71.6%? According to the Beer Institute, that figure represents the population of the United States over the legal drinking age, based on census data.
The self-regulation aspect of this might cause you to raise an eyebrow, and it can lead to problems. But in general, the alcohol industry seems to stay in the good graces of the government.
That, combined with a pretty constant plurality of drinkers, has allowed alcohol marketing to flourish. Seeing a celebrity endorse alcohol on national TV is no big deal, and we’re generally not even too concerned if our children happen to see an ad while we watch a game.
But would we feel the same about an ad for cannabis?
A Sticky Subject
In 2016, California voted to legalize the recreational use of marijuana. Proposition 64 allows individuals over 21 years old to grow and possess marijuana for personal use, while the sale and taxation of the substance will become legal beginning in 2018.
The bill states that marijuana businesses can only advertise in locations in which 71.6% of the audience is over the age of 21. If that oddly specific number sounds familiar to you, it’s because it’s the exact standard alcohol trade groups use as a guideline for ethical advertising.
A standard they created themselves.
“The initiative (in California) has a marketing standard that’s based on an alcohol industry voluntary code,” says Rachel Barry, a doctoral researcher at the University of Edinburgh, studying how governments regulate marijuana. “Public health research says this is an ineffective method that tends to overexpose young people to advertising.”
Reading state advertising regulations for marijuana, many sound like they were directly lifted from the guidelines outlined by the three alcohol trade groups. Colorado sets the bar for of-age audience even lower at 70%. Washington offers no regulation of audience age, just that branding may not use any “depiction designed in any manner to be especially appealing to children.”
“It looks like (marijuana legalization) will follow the alcohol industry model,” says Barry. “And that is in part due to drug reform groups looking to the alcohol laws and just copying that legislation, without looking at why.”
Barry says that just as alcohol’s self-regulation has been ineffective at preventing marketing to minors, the current marijuana legislation will fail in an effort to shield children from drug advertising. Barry and her colleague penned a report on California’s Proposition 64, recommending much stricter marketing regulations that resemble tobacco restrictions, and in some cases going even further—like a ban on price discounting.
Some states do ban price discounting on cannabis as well as giveaways of branded merchandise (a staple of alcohol marketing), but because many states built their laws using alcohol guidelines as a reference point, Barry says they don’t go nearly far enough.
The fear is that without a properly regulated advertising environment, the industry could turn into a Wild West atmosphere, where anything goes. Reeling in a wild industry is a much bigger challenge than loosening the reigns gradually.
“It’s a slower process, but the idea is to protect public health in the long run, that we don’t jump the gun and allow for an unregulated industry to develop.” says Barry. “Once that industry grows, it becomes more politically powerful and it becomes more difficult to overcome that influence.”
As of today, the door is open for marijuana advertising on TV and many other traditional and digital outlets. But that doesn’t mean we’ll start seeing weed ads blooming. There’s another important partner in this situation: media companies. In fact, the biggest obstacle may not be the laws, but reluctance from broadcasters.
Two years ago, an ABC affiliate in Denver (KMGH) was slated to air the country’s first television ad for a cannabis company. The spot was supposed to air during a late night talk show, presumably satisfying the 70% rule, but the station ended up backing out of the deal, fearful of federal fines.
While the federal government doesn’t explicitly outlaw marijuana advertising, the FCC could certainly levy a fine for advertising an item that is still illegal under federal law.
“The concern that I and many others have expressed is that marijuana is still illegal under federal law,” says David Oxenford, a lawyer specializing in FCC regulatory law. “Because it’s still a Schedule 1 drug, a broadcaster holding an FCC license running an ad for illegal substance presents potential for risk.”
While the FCC may choose to ignore ads shown in states that have legalized marijuana, all it would take is one prosecutor to bring a fine down on a station. That’s enough to make cautious TV station lawyers nervous. Unless stations are desperate to sell ad space, marijuana ad buyers are something they can live without.
“Someone in the enforcement bureau who didn’t like product could get permission to crack down on it,” explains Oxenford. “During the Obama administration, the Department of Justice issued a clarifying letter for the banking industry that said that they would not prosecute banks that took money from marijuana related businesses (operating within the bounds of state laws). That kind of clarification hasn’t been issued from the FCC for broadcasters.”
Stations reject Super Bowl ads almost every year for being too sexual or otherwise offensive, even if the ad itself is relatively tame. Without a change at the federal level—either legalization or a statement assuring nonintervention—pot ads will be a tough sell. If they do happen, they’re likely to be relegated to late night cable shows, sharing time slots with smut DVDs and Taco Bell’s latest Dollar Menu campaign.
But it’s not impossible.
In This Bright Future, You Can’t Forget Your Past
Assuming the country continues on the same path of legalization, with regulations being based on alcohol advertising guidelines, it’s conceivable that we will see mass media ads for marijuana in the near future. A big part of that will rely on public opinion. A record 58% of the public currently supports legalization, while 43% say they’ve tried marijuana. The percent of regular users has risen to 13%, which comes close to surpassing the number of active tobacco users.
If a strong majority of the public sees no issue with marijuana usage, television stations and other media companies will be far more willing to air commercials. Like alcohol and tobacco before it, the industry already has their own trade association, the National Cannabis Industry Association, that can lobby for members and recommend marketing guidelines. By avoiding the borders of the public’s tolerance, they could keep a friendly regulatory atmosphere, in a way that the alcohol industry has managed to maintain so effectively over the years.
At the moment, television and other mass media advertising doesn’t seem to be on the radar for many marijuana businesses—there’s just not a big need yet. “I don’t think (the regulations) are much of a hinderance,” says cannabis business consultant Kristen Yoder. “The people that are looking for cannabis already know where to look for it, as far as cannabis-specific websites or magazines.”
Mass media advertising requires mass media budgets, and not too many marijuana businesses rise to that level just yet—at least not on their own. Yoder does see the industry growing quickly, with investment groups buying up smaller shops to form larger marijuana firms. That will start to condense industry power—and influence—which will make the question of mass media advertising more pressing. That could force the FCC’s hand to take a position, one way or the other.
Before we see ads for individual cannabis brands, we could see industry trade group ads aimed simply at improving public opinion—family-friendly ads extolling the patriotic and economic virtues of the cannabis industry. From there it’s not a big leap to individual brand advertisements and celebrity endorsements.
When it happens, it will happen fast. The next few years will see a tense standoff between public health and industry advocates, and those battles will determine what the future of marijuana marketing looks like.
But if our current path is any indication, your next NFL game-watching party may feature a new type of libation on the TV screen. And when that happens, snack aisles from Seattle to Atlanta better be prepared for the blitz.