With the legalisation of cannabis in Washington and Colorado have come fears that these new legal cannabis markets will pave the way for Big Tobacco to be joined by 'Big Cannabis', fears enthusiastically stoked by opponents of reform such as the SAM project. The risk is, however, a real one - that the net benefits from legal regulation could be reduced, if the centrality of public health goals for policy are to some extent undermined by profit-motivated political lobbying and over-commercialisation.
How great this risk is will be affected by the model of legal regulation that is adopted, and there is certainly no inevitablity to this. In Uruguay, for example, the legal cannabis market is entirely government-controlled and similar to the Borland model for tobacco regulation. As such, the commercialised 'Big Cannabis' public health apocalypse that has been hyped by some naysayers could never materialise anyway.
However, the situation in the US may be different where there is an intrisic cultural aversion to state interference with markets. Concerns have not been assuaged by the high-profile showboating of pot-entrepreneurs, such as fomer Microsoft manager Jamen Shively, who is aiming to create a national brand of cannabis, eventually covering all states as legalisation progresses. His entirely unhelpful talk about seeking to make millions by establishing the 'Starbucks of pot' is the worst possible PR for the reform movement; leading drug policy academic Mark Kleiman has referred to Shively as an example of the “insensate greedheads” flocking to the legal cannabis industry.
Transform, by contrast, recommends that a ban on all forms of cannabis advertising, promotion and sponsorship should be the default starting point for any system of legal cannabis regulation (much more in line with the Uruguay model). However, political and legal constraints on marketing controls may prove to be a challenge. While the restrictions on marketing in both Washington and Colorado are far stricter than some of the 'Big Cannabis' scaremongering has led many to believe, 'freedom of commercial speech' challenges to the nascent regulation models are already apparent in Colorado, with two publications, High Times magazine and Westword, suing Colorado in federal courts over advertising restrictions on recreational cannabis products.
Read more about the challenges for controlling cannabis marketing, as well as recommendations for managing them, in the chapter below from our recent major publication, 'How to Regulate Cannabis: A Practical Guide'. We welcome discussion on the issues raised in the comments section below.
- Preventing the promotion of cannabis and cannabis use
- Negotiating political and legal obstacles to the implementation of adequate marketing restrictions
- Experience with alcohol and tobacco demonstrates the capacity for marketing activities to influence levels and patterns of drug use
- If the overarching regulatory framework for cannabis allows private companies to dominate the trade, attempts to restrict marketing activities are likely to be met with significant resistance
- Evidence from tobacco regulation suggests that partial bans which prohibit only certain forms of marketing rather than a comprehensive ban that covers all marketing activities are unlikely to be effective in reducing the potential harms associated with cannabis use
- When subject to partial bans on marketing, tobacco companies maintain their level of promotional spending, simply diverting more money to those (often more subtle) marketing activities that are permitted. Partial bans should therefore be expected to lead to similar behaviour from private companies involved in the cannabis trade
- A ban on all forms of cannabis advertising, promotion and sponsorship should be the default starting point for any regulatory system
- Article 13 of the World Health Organization’s Framework Convention on Tobacco Control provides a comprehensive blueprint for how to eliminate tobacco marketing that could easily be applied to cannabis
Advertising, promotion and sponsorship form the front line of most industries’ efforts to maintain and increase their customer bases. Historically, the alcohol and tobacco industries have been no different, using a variety of marketing techniques to maximise consumption of their products and, consequently, their profits. Although recent decades have seen varying degrees of success in curbing the use of such techniques by these two legal drug industries (markedly more progress being made with tobacco than alcohol), these successes have been hard-won, with industry fighting against them at every turn. Governments seeking to enforce adequate restrictions on cannabis marketing may face similar challenges from big business. However, unlike with alcohol and tobacco, we have a clean slate: if non-medical cannabis is regulated strictly enough from the outset, an ongoing conflict in this area becomes less likely policy makers will not have to struggle to control a powerful and well-established industry seeking to aggressively promote its products. Lessons on the potential risks in this area can be learnt from the irresponsible and inadequately regulated marketing of medical cannabis products seen in some US states. Marketing has been one of the key battlegrounds between governments and alcohol and tobacco companies, and perhaps most clearly highlights the tension between the aim of reducing the health and social harms associated with drug use and the aims of private interests operating in a commercial marketplace. Policy makers considering the type of controls that should be placed on the marketing of legal cannabis products must be aware of these conflicting aims, and recognise the importance of marketing restrictions to the overall effectiveness of any system of legal cannabis regulation.
Lessons from the regulation of tobacco marketing
The World Health Organization (WHO) has stated that the elimination of all forms of tobacco advertising, promotion and sponsorship (TAPS) is essential for meaningful tobacco control. It is considered a goal so critical that Article 13 of the WHO Framework Convention on Tobacco Control (FCTC) which requires all Parties to establish a comprehensive TAPS ban is one of only two provisions in the treaty that includes a mandatory timeframe for implementation.125 The history of tobacco marketing, and the evidence of its effects, provides ample support for such a prohibition. For much of the 20th century, TAPS was subject to minimal regulation. The tobacco industry was allowed to advertise through all forms of media, and developed increasingly sophisticated techniques to promote its products. Direct and indirect marketing through sponsorship of sporting and music events, as well as product placement in films and television shows, helped to associate use of the drug with desirable situations or environments, and served to improve the public image of the companies that produced it. And as health concerns began to be raised over tobacco use, the industry employed marketing ‘spin’ to brand a range of cigarettes ‘mild’ or ‘light’ to give the false impression that they were safer.
An advert for 'mild' Camel cigarettes.
The considerable freedom afforded to tobacco companies in promoting their products is strongly linked to the increase in the rate of tobacco use that continued in most Western nations until roughly the mid-1960s.There is, for example, conclusive evidence that TAPS is an effective method of recruiting new smokers, a fact that has been recognised by the US Surgeon General, who has stated categorically that “there is a causal relationship between advertising and promotional efforts of the tobacco companies and the initiation and progression of tobacco use among young people.” Even after greater restrictions were imposed on TAPS, it is still believed to have been one of the key drivers of tobacco use and related harms. One estimate is that in the US, between 1988 and 1998, TAPS alone was responsible for generating approximately193,000 additional adult smokers and 46,400smoking attributable death per year, resulting in annual medical, productivity and mortality-related costs of as much as $33.3billion. Clearly the safety of cannabis relative to tobacco means that these health, social and financial costs are of a magnitude far greater than those that might result from cannabis advertising, promotion and sponsorship (CAPS), yet such estimates highlight how, even when the marketing of a legal drug for non-medical use is subject to restrictions, it can still produce serious and avoidable harms. Hence WHO states that while total bans on all forms of TAPS can reduce smoking prevalence (and by implication smoking-related harms), partial bans “have little or no effect”.
Partial bans typically do not cover indirect forms of marketing such as sponsorship, and evidence shows they do not reduce tobacco companies’ expenditure on promotional activities. Instead, overall spending on TAPS remains the same, with more money simply being diverted into those forms of marketing that remain legal.Taken together, experience from the regulation of TAPS indicates that the unrestricted marketing of cannabis is likely to be accompanied by an expansion in consumption and associated harms Furthermore, while legal constraints in some countries may mean that partial marketing bans are the only feasible regulatory response, they are unlikely to adequately reduce the public health and safety burden, however small, that cannabis use poses. Where existing legal frameworks could allow it, a comprehensive CAPS ban represents the optimal form of control.
Lessons from the regulation of the alcohol market
While considerable success has been achieved in limiting tobacco marketing, with many countries imposing bans on television advertisements and sponsorship of events, the alcohol industry has been left relatively free to promote its products across all media. The result is that exposure to marketing of a seriously harmful drug is in many places simply a fact of everyday life. Such a high level of exposure, and its necessary public health implications, should serve as a warning to policy makers contemplating allowing cannabis to be promoted in a similarly laissez-faire manner.
- In England, football fans see around two references to alcoholic brands every minute when they watch a match on TV in addition to the formal advertising during commercial breaks
- Alcohol marketing campaigns are increasingly being conducted via social networking sites such as Facebook and Twitter which are disproportionately used by young people
- One study estimates that 10-15 year olds in the UK see 10% more alcohol advertising on TV than their parents do. And when it comes to the specific sector of ‘alcopops’ (sweetened alcoholic drinks marketed to appeal to children and young people), they see 50% more.
The Twitter page for Budweiser- many alcohol companies now have Facebook and Twitter pages to promote their products.
Article 13 of the Framework Convention on Tobacco Control- a template for cannabis
For policy makers operating in legal and political contexts that allow it, Article 13 of the FCTC could essentially be adapted for cannabis merely by switching the words. Following the recommendations it contains, a comprehensive CAPS ban would therefore cover:
- All advertising and promotion, as well as sponsorship, without exemption
- Direct and indirect advertising, promotion and sponsorship
- Acts that am at promotion and acts that have or are likely to have a promotional effect
- Promotion of cannabis products and the use of cannabis
- Commercial communications and commercial recommendations and actions
- Contributions of any kind to any event, activity or individual
- Advertising and promotion of cannabis brand names and all corporate promotion
- Traditional media (print, television, and radio) and all media platforms, including Internet, mobile
More specifically, in addition to prohibiting the more obvious forms of cannabis marketing, this would entail a ban or restrictions on:
- Retail cannabis displays
- ‘Brand stretching’ and ‘brand sharing’ - These two practices could occur when a cannabis brand name, logo, or other identifying feature is connected or shared with another non-cannabis product or service
- Corporate social responsibility - Alcohol and tobacco companies, for example, often make contributions to charitable causes or promote ‘socially responsible’ elements of their business practices in order to improve their public profile. This is sponsorship that indirectly promotes such companies and their products. Cannabis companies should therefore be forbidden from engaging in similar activities
- Depictions of cannabis in entertainment media - Both fictional and non-fictional forms of entertainment that feature cannabis products of their use should be required to certify that no benefits have been received for such depictions. Classification systems for film, television or other forms of media should also take cannabis depictions into account
- Cannabis industry-funded journalistic, academic or artistic work that promotes cannabis use or cannabis products - While a comprehensive ban such as that stipulated by Article 13 of the FCTC would not interfere with legitimate forms of expression, vigilance should be urged with regard to, for example, journalists or political commentators who may be receiving funding from the legal cannabis industry to write articles encouraging the use of tobacco products/ This tactic has previously been attempted by the tobacco industry
Legal or political constraints on marketing controls
Article 13 of the FCTC does, however, recognize that in some instances a comprehensive ban on TAPS would violate a country or jurisdiction’s constitution. In such cases, it still requires restrictions on TAPS that are as comprehensive as possible within constitutional constraints. Again, this concession could equally be made for restrictions on cannabis advertising, promotion and sponsorship (CAPS), and would likely be necessary given that in some countries precedents have been set with regard to tobacco and alcohol marketing. The US Supreme Court, for example, has ruled that tobacco companies have a right to at least some form of advertising for their products under the First Amendment of the Constitution. However, although the so-called ‘commercial free-speech’ of tobacco
companies has been deemed worthy of legal protection in the US, TAPS is increasingly being subjected to restrictions. Among other things, the Family Smoking Prevention and Tobacco Control Act, which became law in 2009, prohibits event sponsorship by tobacco companies as well as brand-name non-tobacco promotional items.Thus in countries or jurisdictions where commercial free-speech laws are likely to be in conflict with future CAPS regulation, there is potentially still significant scope for restrictions on cannabis marketing, even if evidence suggests these will be of more limited effectiveness compared to comprehensive bans.
In addition to legal constraints, there may be political opposition to effective CAPS regulation. Touching as it does on issues of freedom of expression, such regulation will inevitably be resisted by libertarian-leaning politicians or policy makers. However, this viewpoint is unlikely to have much traction with the wider public. The distinct nature of drug risks relative to most other commodities, and the particular need of drug risks relative to most other commodities, and the particular need to protect vulnerable groups from exposure to these risks, would for most people be considered sufficient justification for restricting standard commercial freedoms.
CAPS regulation around the world