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To industry’s dismay, Md. regulators pass advertising rules for medical cannabis

Cannabis buds with potency testing results are on display at a dispensary. (Photo: Sonya Yruel/Drug Policy Alliance)

Cannabis buds with potency testing results are on display at a dispensary. (Photo: Sonya Yruel/Drug Policy Alliance)

ANNAPOLIS — Some of the largest members of Maryland’s wholesale medical cannabis industry threatened legislative and legal action to thwart new advertising regulations passed by state regulators Thursday.

The Maryland Medical Cannabis Commission unanimously passed the regulations, which will ultimately require legislative review. The panel’s action raised the hackles of some growers and processors who said the commission is punishing all licensees in an attempt to control others.

“I think the issue that we have here is that we continue to come up with regulations to deal with bad actors within the industry,” said Mackie Barch, chairman of the Maryland Wholesale Medical Cannabis Trade Association. “It tends to be a little draconian and be a little heavy-handed.”

Barch called the new regulations a “gross overreach” that is not imposed on other industries, including prescription opioids.

Barch said his organization was prepared to oppose the issue in the legislature, which begins its session in about a month.

“The last thing we want to do is get into another fight in the legislature,” said Barch.

He also hinted at a possible court challenge, saying the industry has First Amendment rights.

“If the commission infringes upon those free speech rights, we’re going to have no choice but to defend those rights,” he said.

Under the new regulations approved by the commission, growers, processors, dispensaries and other related businesses are prohibited from advertising on billboards, radio and television. The regulations place restrictions on print advertising in newspapers.

The new regulations raised concerns for the Maryland-Delaware-DC Press Association that certifying the ages of users to satisfy new requirements could pose an onerous burden on newspapers, both in print editions and on websites.

Newspapers and their websites can run print advertisements if the publication’s audience is determined to be at least 85 percent 18 years of age or older.

Charles Smith, chair of the commission’s policy committee, said there was some brief consideration of allowing billboard advertising. Under one proposed set of conditions, billboard advertising would be required to be at least 500 feet from a school, playground or library.

The content of the advertising would have been limited to the name of the business, address, contact information, including social media accounts, and directions.

The ads limit the kinds of information that may be advertised and require social media and websites to employ age-restricting services to prevent access by minors. Many sites for businesses that sell alcohol or tobacco products frequently require a user to provide their date of birth. That technology, however, does not verify the age of the user beyond the self-reporting.

Smith said he was unmoved by the billboard industry, which urged the commission to not regulate the industry.

“They wanted us to allow them to self-regulate,” said Smith. “I was uncomfortable with that, allowing that industry to self-regulate.”

Instead, Smith said, the choice was between banning all billboard advertising or allowing some with restrictions.

The commission voted to ban billboard advertising.

Members of the state association of medical cannabis dispensers asked for future guidance on what would be permissible in marketing materials — novelty items such as hats, T-shirts and lighters — that are not print and billboard advertising.

State officials said the medical cannabis program is just 40 percent of the way to its estimate of about 200,000 total registered patients.

Philip Ziperman, of the Office of the Attorney General’s Consumer Protection Division, urged the commission to go a step further and add language that would require anyone advertising cannabis products to back up treatment claims with scientific proof.

“It’s not adding any type of burden that doesn’t exist in current law,” said Ziperman.

Ziperman explained the language would give assurances to consumers that products will treat conditions for which they are being advertised. He added the requirements would also give the industry “a more precise road map on what they can or can’t say.”

That recommendation was not ultimately added to the new regulations.

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