Disclaimer: This column is written for educational purposes only. It does not provide specific legal advice and does not create an attorney-client relationship. This column should not be used as a substitute for competent legal advice from a licensed attorney in your state.
Anything goes on the Internet, it seems – except when it comes to cannabis. Over the past month, many producers of cannabis-related YouTube channels have seen their carefully curated accounts shut down. Those impacted have ranged from Marihuana Television in Spain and Urbanremo in Canada to U.S. cannabis website Leafly.
It's the latest in a series of online cannabis prohibitions and purges that have those in the movement crying foul. In 2016, Facebook pulled the plug on the pages of dozens of cannabis dispensaries around the country, and Instagram, which is owned by Facebook, did likewise. Facebook and Google have also steadfastly refused to allow cannabis-related marketing on their all-important digital ad networks.
What gives? Cannabis, after all, is now legal for medical use in 29 states and adult use in 9 states and the District of Columbia. And in many of these fiercely-competitive new markets, cannabis brands sorely need these digital platforms to stand out from the crowd, while cannabis activists have important educational and informative messages to disseminate far and wide. Plus, don't companies like Facebook and Google (which owns YouTube) want the potential ad revenue associated with legal cannabis, one of the fastest-growing industries in the country? Finally, what about free speech?
All of these points are compelling, but they're overshadowed by an incontrovertible fact: According to federal law in the United States and many other countries around the world, cannabis is still illegal. And while it might seem like these Internet behemoths are specifically going after cannabis content, in reality they are following their purposely-crafted rules and regulations with regards to illegal activity. That's where the problem lies: Most people and businesses launch Facebook pages or YouTube channels and build up massive followings without first reading up on what they can and cannot do on such sites. Sure, pouring over legalese is boring and tiresome, but doing so beforehand could save you a lot of aggravation, time, and resources, as well as prevent the digital obliteration of the followers you fought so hard to acquire.
Let's go over those regulations. YouTube's content policies note the company draws the line at "content that intends to incite violence or encourage dangerous or illegal activities," including "hard drug use." While a majority of Americans no longer consider cannabis a "hard drug" (and also believe it should be legal), so long as cannabis remains under Schedule I of the U.S. Controlled Substances Act, it is, legally speaking, as hard a drug as they come. Facebook's community standards are even more explicit: "We prohibit attempts by individuals, manufacturers, and retailers to purchase, sell, or trade non-medical drugs, pharmaceutical drugs, and marijuana." Same with ads on these sites. Facebook's ad policies, for example, state outright that "ads must not promote the sale or use of illegal, prescription, or recreational drugs."
For an example, take Leafly. The website functions as an ancillary cannabis business and an educational platform that doesn't directly promote illegal activity or hard drug use. So why would the operation have run afoul of YouTube's content policies? While I haven't compared notes with YouTube's head honchos on the matter, I believe Leafly's YouTube channel was taken down because Leafly provides online menus and pricing for cannabis products. Even if Leafly's videos didn't directly reference such pricing tools, they were directly affiliated and linked back to such resources on Leafly's website. And any time there is even an association with cannabis retail pricing like this, that is likely one step too close to the concept of distribution and sale of illegal substances for those who are keeping score at YouTube.
And we're not just talking about the sale and distribution of cannabis. The same rules apply for cannabis consumption. Even if you are allowed to consume cannabis for recreational or medical purposes in your state, as soon as you record yourself doing so and disseminate that information on various online platforms, in the eyes of the feds you are promoting the consumption of an illegal drug.
Google and Facebook don't care if you've spend years cultivating a following on their platforms. If there is potential that your content could leave them at risk of breaching U.S. federal drug laws, they're going to give you the boot. It doesn't matter if these sites have ways to limit who sees your ads and tools to target posts so they only appear in states with legal cannabis; as multinational corporations with huge numbers of users worldwide, they are going to be wary of any content that has even the slightest potential of being associated with inter-state or international drug sales and distribution.
Sure, maybe it doesn't seem like your content is encouraging cannabis use or facilitating cannabis sales, but if there is even a whiff of you doing so, these companies would rather be safe than sorry. And yes, it's easy to find YouTube videos and social media posts that flaunt these content standards far more egregiously than any cannabis channel or page, but this isn't kindergarten. You don't get to plead your case by arguing that someone else is more wrong than you are.
As for all that advertising dollars these tech companies are throwing away by such policies? Google's parent company has a market cap of upwards of $700 billion, while Facebook's market cap is about $500 billion. Trust me: They're doing OK even without a few million more in cannabis ad revenue.
A THC Design-branded billboard in Los Angeles, photo via
Unfortunately, cannabis interests don't have many options when it comes to more traditional advertising avenues, either. Many states that allow medical or recreational cannabis have implemented severe restrictions around cannabis-related print, broadcast, radio, and billboard advertising. It doesn't help that thanks to the Controlled Substances Act, any use of "communication facilities" to advertise the sale of Schedule I drugs is considered a felony crime. Canada's impending legal cannabis market is poised to go a step further, requiring all cannabis products to be packaged in plane-Jane, single-color containers. If you want to try to test the limits of these rules or even challenge some of them in court, go for it. You just better have some serious money in the bank to cover the legal costs.
Do I like all these restrictions? No. Do I think they make sense? No. Is it fair? No. Is it a violation of our First Amendment right to free speech? Again, unfortunately, no. The issue stems from the blatant conflict between state and federal law, which is inextricably intertwined with interstate commerce. Congress, after all, retains the right to ban illegal substances, such as cannabis, from interstate and foreign commerce. It is on this premise that these social media giants derive and implement policies which blatantly prevent cannabis activists, businesses, medical professionals, and educators from enjoying the same rights as their counterparts in any other legal industry.
So when it comes to promotions and advertising, we have to play by the rules. It's why the National Association of Cannabis Businesses, the industry's first self-regulatory organization, recently published proposed national cannabis advertising rules that are considerably more restrictive than anything other regulated industries such as alcohol or tobacco have ever floated.
But that doesn't mean you can't figure out ways to promote your cannabis-related services or ideas without breaking those rules. For starters, steer clear of posting images or videos of people consuming cannabis, even if it's in states where doing so is legal. And remember, not everything in cannabis has to be neon green and incorporate "420" or "THC." After that, it's simply about being creative. Ask yourself, "What is it about my business or viewpoint that is cool and unique?" Then build a digital marketing plan that highlights those elements, one that isn't based on the sale and consumption of cannabis.
Maybe you focus on interviews with cannabis experts and patients. Maybe you sponsor and create content around your favorite local sports team. Maybe you create tongue-and-cheek ads that poke fun at the very idea of marketing cannabis like pharmaceuticals. Maybe you report on exciting new cannabis-related developments in places like Israel and Puerto Rico. Maybe you work with social media influencers who will showcase what makes your products unique to their legions of followers (without video and photos of massive bong hits). Maybe you launch a variety of "test" Facebook and Instagram pages, to see what sort of content is acceptable and what isn't.
This isn't simply about following the rules or kowtowing to The Man. This is simply good marketing. Think about it: How often do you see alcohol commercials where folks are really smashed or drinking heavily? Instead, you see luxurious things, you see beautiful people, you see amazing locations. You see visuals that capture your attention and illustrate the idea of the brand. Most commercials, when you think about it, have nothing to do with what the companies are actually selling. There is so much exciting stuff going on right now in the cannabis industry. We have an opportunity to tell those stories in ways that people have never seen.
Yes, we all have to work on normalizing cannabis use, including online and on social networks. But we also have to be reasonable and focus on the smaller steps that will allow us to establish long-term success in building and developing an industry that we can all be proud of. We aren't going to be able to change anything if we've been banned from these online platforms for good — or if we are stuck in jail.
For more on Laura A Bianchi, visit Rose Law Group's website and follow her on Twitter