Bulletin | Advertising Activities | May 21, 2024

To: Marijuana Establishments
From: Investigations and Enforcement Department
Date: May 21, 2024
Subject: Bulletin – Advertising Activities

This Bulletin applies to all Marijuana Establishments (collectively, “Licensees”). The Cannabis Control Commission (“Commission”) has learned that some licensed adult-use Marijuana Establishments have been actively marketing discounts, sales, promotions and other reduced-price Marijuana and Marijuana Products on their own websites or through the websites of other third parties. The Commission has also received inquiries from Licensees regarding what the Commission considers to be permitted advertising practices versus prohibited advertising practices regarding discounts, sales, promotions and other reduced-priced Marijuana and Marijuana Products being offered for retail sale to consumers.

This Bulletin serves to clarify Licensees’ statutory and regulatory obligations under state Marijuana laws. See G.L. c. 94G, G.L. c. 94I, 935 CMR 500.00 et. al., and 935 CMR 501.000 et. al. Licensees must ensure that all advertising and marketing practices taken by, or on behalf of the Licensee by a third-party, comply with 935 CMR 500.105(4). Please note that this bulletin is not legal advice, nor is the Commission able to advise a Marijuana Establishment regarding its compliance obligations. To the extent a Marijuana Establishment has additional questions regarding its legal obligations, it should consult with private counsel.

Advertising means a form of marketing communication that employs a sponsored, non-personal message to sell or promote a Marijuana Establishment’s/Marijuana Treatment Center’s (“MTC”) Brand Name, Marijuana Establishment/MTC Branded Good, service, product or idea.

Colocated Marijuana Operations (CMO) means an MTC operating under a License pursuant to 935 CMR 501.000: Medical Use of Marijuana and a Marijuana Establishment operating under at least one License pursuant to 935 CMR 500.000 on the same Premises.

935 CMR 500.105(4)(b)20. prohibits the following advertising activities:

20. Advertising through the marketing of free promotional items including, but not limited to, gifts, giveaways, discounts, points-based reward systems, customer loyalty programs, coupons, and “free” or “donated” Marijuana, except as otherwise permitted by 935 CMR 500.105(4)(a)9. and except for the provision of Brand Name take-away bags by a Marijuana Establishment for the benefit of customers after a retail purchase is completed.

An Advertisement is a communication that is broadcast widely and used to attract customers or build brand loyalty and may be sponsored by the Licensee itself or by a third-party on behalf of the Licensee. Advertising is not communication or information requested by the Consumer and does not allow for a Consumer to opt out of receiving that information. A non-personal message is a communication that occurs without personal contact or feedback from the recipient of that communication.

If a Consumer specifically requests to receive information from a Licensee or is provided information personally after entering an ME, then those communications are a personalized message rather than as “Advertising” as defined in Commission regulations. For example, if a Consumer entered an ME and the budtender directly tells the Consumer about a special being offered by the ME that day, that is a personal communication. This is because the message is being directed specifically to that individual Consumer and is not broadcast to attract a larger audience. Communications that may be accessed or delivered to a broad audience, such as through an ME’s website, are not personal. Minimal interaction by the Consumer, such as verifying that they are over 21 years old via a website’s age gate in accordance with Commission regulations, does not make the communication personalized.

Pursuant to 935 CMR 500.105(4)(b)20., Marijuana Establishments are prohibited from Advertising—which may include but not be limited to advertising via third-parties or through an ME’s website or social media— “gifts, giveaways, discounts, points-based reward systems, customer loyalty programs, coupons, and ‘free’ or ‘donated’ Marijuana.” This includes broadcasting a reduced or promotional pricing offered on their in-store and online menus as well as the use of terms including, but not limited to “sale”, “discount”, “purchase program”, “xx% off”, and showing strike-throughs of higher prices next to lower prices.

The medical regulations, 935 CMR 501.000 et. all, do not prohibit Medical Marijuana Treatment Centers from Advertising discounts, sales, coupons or other price reductions for medical Marijuana and Marijuana Products offered to Patients for sale. Similarly, CMOs are not prohibited from Advertising discounts, sales, etc. for medical Marijuana and Marijuana Products offered to Patients for retail sale. However, CMOs must take necessary steps to ensure that any advertised or marketed discount, sale or other reduction in price is clearly indicated as being only applicable to medical Marijuana and Marijuana Products intended for retail sale to Patients and not being offered for adult-use Consumers.

Violations of state Marijuana law such as, engaging in prohibited advertising activities, may result in the issuance of fines or up to suspension or revocation of a License. See 935 CMR 500.450(3), (13) and 501.450(3), (13).

Questions?

If you have additional questions, please contact the Commission at (774) 415-0200 or Inspections@CCCMass.com.