Legal Hotline: Medical Marijuana Ads
Legal Hotline: Medical Marijuana Ads
Q: Are there any rules governing ads for medical marijuana under Pennsylvania’s Medical Marijuana Act?
Yes, the Medical Marijuana Act imposes a number of restrictions on advertising and marketing medical marijuana and requires advertisers to obtain approval from the Pennsylvania Department of Health for advertising and marketing materials.
The Medical Marijuana Act was signed into law in April of 2016, authorizing medical marijuana to treat a number of medical conditions. The law also creates and governs a network of licensed practitioners, growers, processors, laboratories and dispensaries authorized to participate in different aspects of the law.
Section 402(A)(3) of the Act and corresponding regulations expressly prohibit practitioners (physicians) from advertising their ability to certify a patient to receive medical marijuana. The regulations define “advertising” as “[T]he publication, dissemination, solicitation or circulation, for a fee, that is visual, oral, written or electronic to induce directly or indirectly an individual to patronize a particular dispensary or to purchase particular medical marijuana.” This definition includes newspaper advertising, both print and online. Thus, physicians who can certify patients to receive medical marijuana under the Act may not advertise this fact to the general public. For example, an ad placed by a practitioner that says “I’m Dr. Smith and I can certify you for medical marijuana” would be prohibited by law.
Further, section 301(A)(14) of the Act requires the Department of Health to promulgate regulations that restrict the advertising and marketing of medical marijuana, consistent with federal regulations governing prescription drug advertising and marketing. Consistent with that mandate, 28 Pa Code 1141.50 governs advertising by medical marijuana organizations generally and imposes the following requirements:
- Advertising and marketing of medical marijuana must be consistent with Federal regulations governing prescription drug advertising and marketing in 21 CFR 202.1 (relating to prescription-drug advertisements). Note: the FDA offers guidance on prescription drug ads here.
- Promotional, advertising and marketing materials shall be approved by the department prior to their use.
Further, dispensaries may advertise their services consistent with the requirements above, but 28 Pa Code 1161.27 prohibits dispensaries from advertising medical marijuana:
- As a promotional item.
- As part of a giveaway.
- As part of a coupon program.
Finally, 28 Pa Code 1171.36 prohibits laboratories from advertising, marketing or promoting its medical marijuana testing services to the general public. Laboratories may only promote their medical marijuana testing services to a grower/processor, and any marketing materials must be approved by the Department of Health prior to use. Laboratories that violate this prohibition risk losing certification under the Act.
Medical marijuana advertising is legal, provided it is consistent with state and federal law. Proposed medical marijuana ads must be approved by the Department of Health prior to their use, but news organizations are not required to verify pre-approval. News organizations working with clients seeking to place medical marijuana ads should advise advertisers to work closely with the Department of Health and private counsel to ensure compliance with applicable state and federal law.
As always, this is not intended to be, nor should it be construed as, legal advice. Please contact the PNA Legal Hotline at (717) 703-3080 with questions.