As stores and growers open around the state, concerns that the rules for marijuana advertising in Alaska are too vague and could create unwanted federal attention have brought them back to the table for discussion.
During the Marijuana Control Board's meeting in early December, questions raised about the advertising regulations left the board, which is tasked with writing the laws around commercial marijuana, asking itself what an advertisement actually is, and what businesses can do to promote themselves.
"Sure as heck, this could be one of the first things that we get complaints about," board member Mark Springer said of advertising.
Proceed with caution
At the meeting, Springer and a state attorney advised marijuana entrepreneurs to be prudent when it comes to advertising their business.
This is based partly on the incoming federal administration, and the question of whether it will enforce federal marijuana prohibitions, which clash with state law. So far, states have relied on the Department of Justice's Cole Memo for guidance. But that could soon change.
"We don't know what the new administration will bring," assistant attorney general Harriet Milks told the board.
"I'm not advising clients not to advertise. I'm advising them to be smart," marijuana attorney Jana Weltzin said in an interview last week. She's hoping the industry will self-regulate but also says the regulations need more clarification.
"We will get some bad operators," Weltzin said. "And the problem comes when you have a federal administration that's pretty ego-based, and you strike their ego by saying you're not going to comply with federal law and shove it in their face … you're asking for federal attention."
Some marijuana businesses have already stepped back from traditional forms of advertising.
"I've just been super, super cautious about it all, because I do know that the regulations are kind of vague on what I can do and what I can't do," said Keenan Hollister, co-owner of Pakalolo Supply Co., a retail cannabis store in Fairbanks.
"It's kind of touchy, and I don't want to be the first one to make those waves," Hollister said. For now, they'll stick with free social media, he said.
What makes an ad?
But other businesses do plan to advertise. James Hoelscher, enforcement supervisor with the Alcohol and Marijuana Control Office, told the board on Dec. 6 that he had been approached by a business interested in putting its logo on a hotel key card. He wanted to know: Would that be considered advertising?
Alaska's current marijuana advertising regulations are fairly basic. There are no prohibitions against running print, radio or other types of ads. An ad for marijuana or marijuana products can't be false or misleading, or promote excessive consumption. It can't say that marijuana has "curative or therapeutic effects," or appeal to people under 21 years old. These restrictions are similar to federal alcohol advertising rules.
In addition, all Alaska ads for marijuana or marijuana products must include five different health and safety warnings.
But there's no actual definition of "advertisement" in the rules. So does that mean a logo needs those warnings, too? Is that logo an ad?
"Maybe or maybe not. I don't think that's really clear," said Marijuana Control Board Chair Peter Mlynarik.
Alaska's marijuana businesses have long been developing their branding. For many, that includes merchandise like T-shirts, hats or stickers.
Board concerns are partly based on restrictions around where marijuana ads can be placed. They must be at least 1,000 feet from a school or other facilities providing services to children, or substance abuse treatment facilities. Ads can't be placed on college campuses or publicly owned property, including buses and any other public transit.
But there's no controlling whether an underage person is handed a hotel key card with a logo on it, or whether a person wearing a cannabis-branded sweatshirt wanders within the 1,000-foot buffer.
Weltzin argued that there's no logical way that a logo can be equated to an advertisement. Since marijuana businesses are allowed to be within 1,000 feet of a school (that buffer zone is only 500 feet), their logos can't be considered advertising.
"Clearly that's not the intention" of the rules, Weltzin said.
'Straight hole in the regulations'
There are other gaps in the rules.
The rules are written so that five health and safety warnings are necessary for an advertisement of a "marijuana or marijuana product."
"The advertisement of marijuana and marijuana products is not the advertisement of the store itself," Weltzin said. So if that business is not directly advertising marijuana, it doesn't need those warnings.
The rules also don't make clear whether they apply only to retail stores, or to other types of marijuana businesses, like growers.
Since the advertising rules appear only in the retail section of the laws, it could be interpreted either way, Milks, the assistant attorney general, told the board.
Leif Abel, co-owner of Kenai Peninsula cultivator Greatland Ganja, called it a "straight hole in the regulations."
His personal interpretation is that cultivators aren't held to the same rules.
Abel said that his company is considering radio advertisement, but in the form of a public service announcement sponsored by Greatland Ganja. His self-enforced advertising restrictions aren't based on the state's rules.
"For us that's not a judgment based on regulations, that's a judgment on where we feel society is at this point," he said.
"Word-of-mouth advertising has been the way that cannabis has moved around the state for years, and that's the way it's going to carry on in this market," Abel said.