Another “Wild West”
If you have been on the Massachusetts Turnpike in recent months—or walked the streets of Boston—you may have noticed a proliferation of billboards and other signage for purveyors of cannabis products. Interestingly, more than a century ago, Massachusetts was the first U.S. state to criminalize recreational marijuana use. In 2008, the Bay State became the 18th state to legalize medical marijuana, and in 2016 legalized recreational marijuana use.
As of summer 2022, 19 states, as well as Washington D.C. and Guam, have legalized recreational marijuana use. When we cover this topic, it is usually in the context of packaging; while the substance itself may be legal or at least decriminalized, there are still a slew of regulations regarding how it can be packaged and sold.
With cannabis retail locations now popping up in the applicable states, we’re starting to see more and more signage advertising these locations and their products. And just as it is in packaging, regulations pertaining to cannabis signage are still in a bit of a “Wild West” stage and, as you can imagine, vary from state to state.
We are not going to go through each state individually, but there are some common denominators, and a lot of the rules that pertain to packaging also apply to signage. Indeed, both are usually considered part of the umbrella term “cannabis advertising,” at least as far as regulators are concerned.
In virtually all the states that have legalized cannabis use, one of the primary goals of advertising regulation is to avoid making it look attractive or appealing to under-21-year-olds. Another focus is to prevent false or misleading health claims (this is especially the case for medical marijuana).
In New York state, for example, if any claims are made in cannabis advertising/signage, verification of those claims must be provided, any individuals in advertisements must be actual patients and so on.
In Massachusetts, “Implementation of an Act for the Humanitarian Medical Use of Marijuana” (https://bit.ly/3A9qkii) includes advertising requirements and prohibitions for Registered Marijuana Dispensaries (RMD), including:
(1) An RMD may develop a logo to be used in labeling, signage and other materials. Use of medical symbols, images of marijuana, related paraphernalia and colloquial references to cannabis and marijuana are prohibited from use in this logo.
(2) RMD external signage shall not be illuminated except for a period of 30 minutes before sundown until closing, and shall comply with local requirements regarding signage, provided however that the department may further specify minimum signage requirements. Neon signage is prohibited at all times.
(3) An RMD shall not display on the exterior of the facility, advertisements for marijuana or any brand name, and may only identify the building by the registered name.
(4) An RMD shall not utilize graphics related to marijuana or paraphernalia on the exterior of the RMD or the building in which the RMD is located.
Needless to say, a giant picture of Bob Marley’s face wreathed in smoke is also probably out of the question.
And so much for promotional items:
(7) An RMD shall not produce any items for sale or promotional gifts, such as T-shirts or novelty items, bearing a symbol of or references to marijuana or MIPs, including the logo of the RMD.
In New York, the Cannabis Control Board has released its codes and regulations for “Adult-Use Packaging and Labeling” (https://on.ny.gov/3PBnfgN) and has also specified where cannabis advertising/signage can and cannot be displayed. For example, such advertising is prohibited at sporting and other events likely to draw under-21-year-olds.
Leafly has a comprehensive state-by state guide (https://bit.ly/3KaitFS) and they appear to be keeping it updated. Some other highlights, skimming through the list:
In Alaska "a retail marijuana store may have not more than three signs, visible to the general public from the public right-of way, that identify the retail marijuana store by its business name. A sign may be placed in the retail marijuana store’s window or attached to the outside of the licensed premises. The size of each sign may not exceed 4,800 square inches.” Signage or other out-of-home advertising is also prohibited within 1,000 feet of the perimeter of any “child-centered facility” like a school, daycare center, etc.
Likewise, in California, a licensee cannot “advertise or market marijuana or marijuana products on an advertising sign within 1,000 feet of a daycare center, school providing instruction in kindergarten or any grades one through 12, playground or youth center.” The code also makes a point to note that interior signage is left pretty much alone, just so long as it is not intended to appeal to under-21-year-olds.
Colorado, arguably the most pot-positive of the states, prohibits cannabis signage to tout safety claims, and also prohibits signage “visible to members of the public from any street, sidewalk, park or other public place, including Advertising utilizing any of the following media: any billboard or other outdoor general advertising device; any sign mounted on a vehicle, any hand-held or other portable sign; or any handbill, leaflet or flier directly handed to any person in a public place, left upon a motor vehicle, or posted upon any public or private property without the consent of the property owner.”
Connecticut prohibits in cannabis advertising, “any statement, design, representation, picture or illustration that encourages or represents the use of marijuana for a condition other than a debilitating medical condition.” Boy, they are really no fun in the Nutmeg State. Connecticut this year also passed a law banning out-of-state cannabis sales—which meant that Massachusetts cannabis retailers had to remove their billboards from Connecticut.
In Washington state, “licensees are limited to two signs (maximum 1600 sq. inches) that are permanently affixed to a building or other structure on the licensed premises. Other forms of signage/outdoor advertising are prohibited, such as sign spinners, sandwich boards, inflatables, persons in costume, etc.” Information on the signage must be limited to name, location and type of business.
Now, remember, these are only regulations at the state level, and individual municipalities may be more strict. And it also bears mentioning that cannabis is still illegal at the federal level. This can cause problems if, for example, content-based enforcement of signage regulations went to court, where protections against content-based regulations are based on federal law and Supreme Court precedents. So challenges to regulations on cannabis signage could ultimately end up in federal court—where cannabis remains illegal and a controlled substance. Very little of this has actually happened yet, but could at some point become an issue.
As I always point out when I write about sign codes, technically it is the responsibility of the sign owner—the customer—to comply with relevant sign codes, but as a sign business, having an in-depth knowledge of the regulations in the geographic area(s) you serve can be a valuable “added service” you can offer customers. You’re in a good position to potentially save them a lot of time, money and legal hassles.
As more cannabis businesses open up shop, they’ll need signage—on-premises and off—and as the need to distinguish themselves from competing businesses gets more acute, it may become easier to fall afoul of advertising and signage restrictions.
