NY Cannabis Control Board Approves Rules for Advertising and Packaging Cannabis

On June 1, 2022, New York’s Cannabis Control Board (CCB) approved regulations that will govern the advertising and packaging of adult-use cannabis…

On June 1, 2022, New York’s Cannabis Control Board (CCB) approved regulations that will govern the advertising and packaging of adult-use cannabis. The CCB’s proposed regulations aim to ensure consumer safety and prevent cannabis companies from targeting youth when promoting their products.

Proposed Cannabis Advertising Regulations

Under the proposed advertising regulations, a licensee is permitted to develop advertising and marketing materials, “provided the primary purpose of the advertising is to displace the illicit market and inform the consumer of the location of licensed retail dispensaries.” The regulations further provide that a licensee may engage in “reasonable advertising practices,” provided the marketing and advertising does not jeopardize public health or safety, promote youth use, or be attractive to individuals under 21.

The proposed regulations define “attractive to individuals under 21” to means labeling, packaging, advertising, and marketing that is pleasing or appealing to persons under the age of twenty-one by using or including, among other things:

• Cartoons;
• Bubble-type or other cartoon-like font;
• Bright colors that are “neon” in appearance;
• Similarities to products or words that refer to products that are commonly associated with or marketed in a manner so as to be attractive to individuals under 21, including but not limited to, any imitation of food, candy, soda, drinks, cookies, or cereal, in labeling, packaging, advertising, or marketing;
• Terms “candy” or “candies” or variants in spelling such as “kandy” or “kandeez”;
• Symbols, images, characters, public figures, phrases, toys, or games that are commonly used to market products to individuals under the age of 21; or
• Images of individuals who could reasonably appear to be under the age of 21.

The proposed regulations require licensees to include the following statement in all advertisements: “For use only by adults 21 years of age and older. Keep out of reach of children and pets. In case of accidental ingestion or overconsumption, contact the National Poison Control Center hotline 1-800-222-1222 or call 9-1-1. Please consume responsibly.” Additionally, licensees must convey a series of rotating warnings, such as “Cannabis may cause impairment and may be habit-forming.”

The proposed regulations contain a number of provisions aimed to prevent advertising to those under the age of 21. For instance, a licensee may only advertise cannabis products, cannabis paraphernalia, or goods or services related to cannabis or cannabis products by means of television, radio, print, internet, mobile applications, social media, other electronic communication, or print publication if the licensee has reliable evidence that at least 90%, unless otherwise determined by the Office of Cannabis Management (Office), of the audience for the advertisement is reasonably expected to be twenty-one years of age or older. Similarly, a licensee who advertises via a website or digital application must have a mechanism designed to keep those under the age of twenty-one from visiting the website or digital application.

The proposed regulations also contain a large list of marketing and advertising prohibitions. For instance, licensees may not use or display colloquial references to marijuana and cannabis or depictions or digital images or icons, whether animated or static, of cannabis, cannabis products, paraphernalia, or the imagery or action of smoking or vaping, including but not limited to “stoner,” “chronic,” “weed,” “pot,” or “sticky buds.” The rules also ban advertisements or marketing asserting that cannabis or cannabis products are safe because they are regulated by the Board or Office, and disparaging other cannabis businesses.

The proposed regulations also prohibit the use of billboard advertisements and provide that advertisements may not be located within or be readily observed within 500 feet of an elementary or secondary school grounds, recreation center or facility, childcare center, playground, public park, or library.

Proposed Cannabis Packaging Regulations

The proposed regulations also establish required and prohibited practices with regard to product packaging. Notably, licensees must satisfy minimum packaging requirements under which a retail package must: be child-resistant; be tamper-evident; fully enclose the product, minimize oxygen exposure, and prevent the contamination and/or degradation of the cannabis product; and not impart any toxic or deleterious substance onto the cannabis product.

The regulations also establish cannabis product retail packaging prohibitions. For instance, packaging may not contain brand elements beyond one brand logo and the brand name, or any pictures, images, or graphics, other than what is required by the Office. Additionally, product packaging can’t be made attractive to those under the age of 21.

Licensees must also establish a packaging environmental sustainability program. Such programs may include but are not limited to reuse strategies collecting reusable cannabis packaging components to be sanitized and refilled or reused as cannabis packaging, or sustainable packaging strategies that use non-plastic, compostable or recyclable materials, or packaging materials exceeding 25% post-consumer recycled content.

With regard to product labeling, the proposed regulations include minimum standards, including lot numbers, total THC, and weight of cannabis products. Retail packages and any marketing layer must also contain other specified information, such as a list of ingredients, date of expiration, storage instructions, and a universal symbol created by the CCB featuring the State of New York logo,  as well as the text “21+,” and “THC!”

The retail packaging or marketing layer must also contain several prescribed warnings, such as: “This product contains cannabis and THC”; “KEEP OUT OF REACH OF CHILDREN AND PETS. For use only by persons 21 years and older”; and “Warning: Do not use if pregnant or nursing.” Labels may not contain false or misleading statements, the term “organic,” or depictions of a child or other person reasonably appearing to be under the age of 21, among other prohibitions.

What’s Next?

The draft regulations will now be subject to a 60-day public comment period, starting on June 15, 2022, before being finalized. We encourage entities interested in entering New York’s cannabis industry to thoroughly review the regulations and consult with experienced counsel regarding compliance.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.

This article is a part of a series pertaining to cannabis legalization in New York, New Jersey and the United States at large. Prior articles in this series are below:

• New Jersey Awards First Adult-Use Cannabis Retail Licenses
• Will New York Allow Cannabis Businesses to Deduct Expenses?
• Are You Eligible for New York’s New Cannabis Licensing Opportunities?

Disclaimer: Possession, use, distribution, and/or sale of cannabis is a Federal crime and is subject to related Federal policy. Legal advice provided by Scarinci Hollenbeck, LLC is designed to counsel clients regarding the validity, scope, meaning, and application of existing and/or proposed cannabis law. Scarinci Hollenbeck, LLC will not provide assistance in circumventing Federal or state cannabis law or policy, and advice provided by our office should not be construed as such.