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California Bill Would Ban Cannabis-Branded Hats, T-Shirts, Other Merchandise

June 27, 2017
In this Sunday, April 23, 2017 photo, free samples are passed out to visiting attendees at the High Times Cannabis Cup in San Bernardino, CA. (Richard Vogel/AP)
Go to a California cannabis event and you’re likely to walk away with a free hat—or a bumper sticker, or a t-shirt, or tote bag emblazoned with a cannabis company’s logo. But under a bill being considered in the state Legislature, all that branded merchandise would go up in smoke.

Senate Bill 162, by state Sen. Ben Allen (D-Santa Monica), would prohibit state-licensed cannabis businesses from advertising “through the use of branded merchandise, including, but not limited to, clothing, hats, or other merchandise with the name or logo of the product.” It’s a measure aimed at reducing children’s exposure to cannabis ads, but some in the industry say it amounts to legislative overreach and could end up doing more harm than good.

Last month the Senate passed the measure unanimously, 40–0. On Tuesday, the Assembly’s Business and Professions Committee passed it 12–0, sending it on to the Assembly Appropriations Committee.

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Advertising has been a thorny issue as the Golden State works to bring its multibillion-dollar cannabis industry out of the shadows and into a legal, regulated marketplace. Concerns over advertisements that might appeal to minors have already led to restrictions on the use of certain music, language, shapes, cartoon characters, and other content known to capture kids’ attention. In addition to staying away from schools, daycares, and youth centers, advertisements can be served only to audiences that are at least 71.6% composed of adults 21 and over.

“SB 162’s restriction on 'advertising' generally would give enforcement authorities the ability to shut down all cannabis merchandising.”
Rebecca Stamey-White, attorney

Branded merchandise is also currently restricted, with distribution allowed only at “an industry trade show or other similar venue where the attendees are required to be 21 years of age or older.” SB 162 would remove that allowance, barring branded merchandise completely.

As written, the law would apply only to commercial speech by state-licensed cannabis companies. Nonprofits and noncommercial speech would be exempt.

The proposal, as LA Weekly’s Dennis Romero reports, has some cannabis businesses up in arms:

The Southern California Coalition, the largest trade group of marijuana businesses in Los Angeles, is … opposed to the proposal. “To ban small businesses from advertising, marketing and branding is ridiculous,” the organization’s executive director, Adam Spiker, said via email.

“The bill would materially hamstring small business owners’ ability to grow in the land of opportunity,” Spiker said. “We are firmly against it, and will work to ensure lawmakers are aware of the harmful ramifications it would have.”

A letter sent to Sen. Allen by the California arm of the American Academy of Pediatrics says the bill “would ensure that children and youth are exposed to a minimal amount of marijuana advertising,” according to the LA Weekly report. “This would help protect children from the dangerous health effects of marijuana use in a manner consistent with tobacco regulations.”

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The limits of the bill’s restrictions on merchandise aren’t immediately clear. In other legal states, employees of cannabis businesses regularly wear branded apparel and other merchandise. But because the law is phrased so broadly—”advertise through the use of”—it’s conceivable that even branded bags or employee t-shirts could run afoul of the proposed law.

“SB 162 is broad enough in its language that it could cover branded merchandise worn by employees or even merchandise produced by an unlicensed third party if it was done so for the licensee,” said Rebecca Stamey-White, a San Francisco-based lawyer who works with the cannabis and alcohol industries.

Other states, such as Washington, have similar restrictions on branded merchandise, although the details are more clearly defined. According to a Washington State Liquor and Cannabis Board FAQ page, licensees may create branded merchandise such as apparel for internal or employee use. Those items can’t be sold or given away directly to consumers, but they can be sold by the licensee’s parent company or a separate-but-related business. Strangely enough, branded paraphernalia—such as pipes, bongs, and storage containers—is not considered “branded merchandise” in Washington and may be sold by licensees.

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“The [California] bill does not have the appropriate limitations that Washington has on their restrictions, which only prevent licensees from selling or giving away branded products from their licensed premises or on their website, but makes no attempt to regulate non-licensees producing or selling these products,” Stamey-White said. “SB 162’s restriction on ‘advertising’ generally would give enforcement authorities the ability to shut down all cannabis merchandising, including all kinds of branded products that do not contain cannabis, so this is a bill the industry should be actively opposing or working toward more precise language here.”

In Colorado, cannabis laws don’t discuss branded products specifically. Instead, restrictions on advertising focus on “mass market campaigns that have a high likelihood of reaching” minors, including internet and in-app advertising.

Advertisements for alcohol, a substance directly or indirectly responsible for thousands of youth deaths every year, are allowed considerably more leeway under the law. “Restrictions on consumer alcohol merchandising are limited to what products may be given away to consumers, but there are not blanket prohibitions on the sale of branded products or restrictions on where these products can be sold as advertising,” Stamey-White said.

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“This bill is an attempt to restrict commercial free speech without a substantial state interest in doing so,” she added. “I believe in restrictions on overly aggressive marketing (which is the constraint on giveaways) and marketing that is appealing to minors, but I think this goes too far.”

The full text of SB 162 is available on the California Legislature’s website.

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Ben Adlin

Ben Adlin is a senior editor at Leafly who specializes in politics and the law. Follow him on Twitter: @badlin

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  • Jim Gunther

    I don’t agree with this one. I can understand not making it attractive to children otherwise it cuts into advertising a fairly new legal industry. Should not be looked at like cigarettes (who had many decades of open advertisement and established itself with the public). If it were up to me I would continue to promote the many health benefits and keep away from a negative message. We’ve had too many decades of hiding this plant from the public because it was seen as criminal, why go back to hiding it in shame? Many cannabis patients are very happy that they finally found something that helped them and wearing a leaf is more like wearing a pink ribbon in support of cancer awareness.

  • Nate M

    How long are we going to let opponents of cannabis legalization use the “children” as their ultimate last stance in our laws and policies? Children are not going to seek out cannabis products even if they wanted to. They don’t work, therefore won’t have money to spend on products. They aren’t of age, again, not legally able to buy products. So really, it comes down to the responsibility of adults who have children to have enough sense to protect their children from getting into cannabis products. As long as companies stay away from copying branded candy bar logos and the like, I don’t really see a threat here. Nobody is out there targeting kids with cannabis to begin with. Nobody is out there hiding around parks and playgrounds hoping to introduce kids to weed…certainly not established companies that exist only to do business with other legal adults. And if we really want to look at the stats, youth’s have been exposed to pot for generations without anybody ever having had totes, shirts, etc. being made and printed until very recently…outlawed products like cannabis have been the very attraction to children…”don’t do this” ultimately tempts youths to want to do it.

  • ozzyaaron

    So I guess they’ll start passing that bill where we’re going to arrest people wearing a Coors hat or a Jack Daniels singlet?

    • grannygear

      Hardly.

      • malcolmkyle

        It’s inevitable.

  • John Pack

    Fuck them I will wear whatever I want to.

  • Todd Burgess

    Heaven knows we must strive to protect our precious children from the ravages of a completely benevolent plant. If small humans have close proximity to “marijuana”, it might get ’em, so be careful. They might not need pharmaceutical chemicals if it does, indeed, get ’em. Even the image of a five fingered…, uh, wait

  • WhoAreThesePeople?

    But can I still wear my Coors hat and Jagermeister t-shirt to school?

    • malcolmkyle

      At the moment.

  • lovingc

    If I make a tee shirt with a cannabis leaf on it am I going to jail?

    • Ben Adlin

      A generic cannabis-leaf t-shirt printed by a private citizen would be fine under this legislation, as it would be classified as noncommercial speech. (Note: I’m not a lawyer.)

  • AceThirtyThree

    This isn’t big tobacco, I would rather the younger generation be attracted to cannabis because of all the health benefits. Why do they really want to do whatever they can to demonize cannabis? Because the campaign in 1930 worked great, so that is the only strategy they know. The money is obviously gonna be there supporting ridiculous stuff like this because we wouldn’t want our kids to stop buying ritalin scripts and use cannabis instead. How will the drug companies afford their health insurance if we take money out of their pocket and save people from needing as much medical attention? Poor fellas. For real maybe we can start getting into the modern era with cannabis (not marihuana as the government STILL labels it in legal terms, which is basically a legalized racial slur from the 30’s). What year is this? It literally makes me sick with all the progress we have made in the last 8 years or so to still have dumb shit like this even come up. Hey, lets spend some money fixing shit that is broken, not shit that works just fine.

  • grannygear

    I’m stoned…and I vote. And I have a T-shirt that says the same thing!

  • Gregory J. Gonzales

    Drug dealers and some liquor store cashiers might not check ID, but established and state-licensed dispensaries sure as hell do. No amount of advertising gets kids through the multiple layers of security most dispensaries have in place.

  • Fester

    OK fine you can have legalization just as long as you don’t tell anyone, don’t let anyone see you smoke it or grow it, don’t talk about it, don’t advertise it, if anyone asks you don’t enjoy it. If you have kids around you must smother them with a pillow before they get the impression that cannabis is OK. Have a nice day.

  • Highway 69

    Is this limited to only branded merchandise bought or sold in California?
    How will this affect online sales?

  • Joshua Lee

    Seems to me it’s a mere first amendment violation, and should be treated as such.

  • Gary Craig

    Big alcohol had a say in this I’d be willing to bet.

    • malcolmkyle

      It’ll backfire. They don’t realize yet that it puts alcohol in the crosshairs too.

  • malcolmkyle

    Then dare to do the exact same for alcohol. Parity or death!

  • David R Velasquez

    What a load of rubbish. What are they going to do, ban Tommy Chong from working as well? Typically the Mothers of Prevention wrongheadedly go overboard on imagined dangers. Pot has been in our culture for decades and decades. By their reckoning we should all be junkies by now. But we aren’t.

  • BigDaddyKevin78

    “It’s all about the children” excuse is getting ridiculous.

    • FlunkedAgain

      Legislators have an affinity for “the children” because they are accomplished practitioners of childish reasoning.