The New York Office of Cannabis Management (NYOCM) has issued tentative rules to govern adult-use cannabis products. In re-issuing the rules, it has opened a new 45-day public comment period.
We had significant concerns with the rules as initially proposed. NYSBA filed extensive comments last August (see below). Unfortunately, the tentative rules do not resolve our problems.
90% Placement Rule
Our first concern was the proposed rule that would require all cannabis advertising to be placed in programs only if 90% of the audience was over 21. We strongly opposed the rule, noting that this would exclude cannabis advertisements on a significant amount of radio and TV programs. It would effectively preclude new cannabis businesses from advertising on local broadcast stations. We urged the adoption of the rule that we have used for alcohol advertising in which approximately 70% of the audience had to be over 21 years of age. This rule has been adopted in most states. Unfortunately, the tentative rule ignores our comments, and those filed by minority cannabis businesses, by keeping the 90% rule in place.
Length of Warning Labels
The proposed rules would initially have required a warning label that was up to 71 words long, effectively preventing most radio spots. While the New York Office of Cannabis Management believes it addressed this issue, the proposed labels are still too long for radio.
As drafted the requirements of the tentative rules are as follows:
(2) if the advertisement contains only auditory elements, then the following statements shall be clearly read aloud at the same volume and pace and in the same language as the rest of the advertisement:
“For use only by adults 21 and older. Keep out of reach of children and pets. In case of accidental ingestion or overconsumption, contact the National Poison Control Center. Consume responsibly
However, as drafted, it appears that any advertisement must also contain a rotating warning label.
(d) Any advertisement, unless otherwise approved by the Office, shall include one of the following warnings in a rotating manner as directed by the Office, in their entirety in a conspicuous manner on the face of the advertisement or clearly read aloud at the same volume and pace and in the same language as the rest of the advertisement:
(1) “Cannabis can be addictive.”;
(2) “Cannabis can impair concentration and coordination. Do not operate a vehicle or machinery under the influence of cannabis.”;
(3) “There may be health risks associated with consumption of this product.”;
(4) “Cannabis is not recommended for use by persons who are pregnant or nursing.” or
(5) Other warnings as determined by the Office.
It is also possible that the rules will require a reference to the New York Hot Line.
(f) A licensee shall include the New York State HOPEline phone number, text number, and website or QR code on any advertisement, or other future iteration of New York State’s gambling and substance use disorder resource helpline, unless otherwise approved by the Office.
In summary, as drafted these labels are still too long for radio advertisements.
We will continue to work on this issue. The tentative rules will be put out for a 45-day notice period. We have 45 days to change the minds of the New York Office of Cannabis Management. It is possible we may have to go the legislative route. I will keep you updated as this issue moves forward.
The tentative rules can be found here.
A copy of our initial filing regarding the cannabis ad rules can be found here.
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