The NY Legislature and the Governor reached agreement on legislation and will approve adult use cannabis in New York. Despite the change in New York law, the Federal ban on cannabis advertising remains. Until there is a change in federal law, broadcasters risk license challenges or possible FCC fines for accepting cannabis advertisements.
With Democratic control in Washington, there is a chance that federal law will change. However, those changes would have to come by statute. The FCC, by itself, is unlikely to change its rules.
Even if there is a change in federal law, the New York cannabis legislation imposes limitations on cannabis advertising. The New York cannabis board has been given the authority to regulate cannabis advertising. We expect the new regulations to be adopted later this year.
The primary objective of the new regulations will be to protect children and minors. For example, the law gives the board the authority to prohibit advertising that “is designed in any way to appeal to children or other minors.” This is incredibly broad. We will be working with New York regulators to make sure this is not interpreted in such a way as to restrict a significant amount of advertising.
The legislation also will require that advertisements “only be placed where the audience is reasonably expected to be twenty-one years of age or older, as determined by reliable, up-to-date audience composition data.” This regulation needs further definition. For example, can we apply the same industry standards used for alcohol advertisements, which generally require that 70% of the audience be over 21 years of age. In addition, the new law would require proof based on up-to date audience composition data. Many stations and markets in New York lack access to audience data.
Again, stations cannot broadcast marijuana advertisements until there is a change in federal law. (We are working on that issue with other State Broadcast Associations). In the meantime, NYSBA will work with the cannabis board to make sure the regulations are not overly restrictive.
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