N.Y. Comp. Codes R. & Regs. tit. 9 § 113.17

Current through Register Vol. 46, No. 36, September 4, 2024

Section 113.17 - Medical Cannabis Marketing and Advertising

(a) General Requirements.

(1) Medical cannabis marketing and advertising shall only include true and accurate statements relating to effectiveness, side effects, consequences or contraindications, regardless of marketing or advertising form. It shall present a fair balance between information relating to effectiveness, side effects, consequences, and contraindications in that the information relating to effectiveness may not be presented in greater scope, depth, or detail than is the information relating to side effects, consequences and contraindications, taking into account all implementing factors such as typography, layout, contrast, headlines, paragraphing, white space, and any other techniques apt to achieve emphasis.

(2) A registered organization may engage in reasonable advertising practices that are not otherwise prohibited in this Part, provided the marketing and advertising does not jeopardize public health or safety, promote youth use, or be attractive to individuals under twenty-one (21) as set forth in section 113.12(k)(1) of this Part.

(3) A registered organization shall ensure that an official translation of a foreign language advertisement is accurate.

(4) Any marketing or advertisement of medical cannabis or medical cannabis products shall include the following statements, in a conspicuous manner on the face of the marketing material or advertisement or be read aloud clearly at the same volume and pace as the rest of the advertisement:

(i) "Keep out of reach of children and pets.";

(ii) "In case of accidental ingestion or overconsumption, contact the National Poison Control Center hotline 1-800-222-1222 or call 9-1-1.";

(iii) "Please consume responsibly."; and

(iv) any other statements or warnings as directed by the Board.

(5) statements or warnings in print or digital advertisements pursuant to this section shall be displayed as follows:

(i) in the English language;

(ii) in Times New Roman, Calibri, Arial, or Helvetica;

(iii) in text no smaller than size six (6) font;

(iv) bolded;

(v) be legible, unobscured, and visible to the consumer; and

(vi) in a bright yellow text box so as to stand out from the surrounding advertisement. The use of a bright yellow color for the warning shall not render the advertisement attractive to individuals under twenty-one (21) as prohibited by section 113.12 of this Part. If the surrounding advertisement is yellow in color, the text box shall be offset with a distinctive border so as to differentiate it from the surrounding advertisement.

(6) A registered organization shall only advertise medical cannabis products, cannabis paraphernalia, or goods or services related to medical cannabis or cannabis products by means of television, radio, print, internet, mobile applications, social media, other electronic communication, or print publication if the registered organization has reliable evidence that at least 90%, unless otherwise determined by the Office, of the audience for the advertisement is reasonably expected to be twenty-one (21) years of age or older. The burden of proof of the audience composition lies with the registered organization.

(7) A registered organization shall maintain records and documentation to establish that its advertising and marketing meet the requirements of this section.

(8) A registered organization may sponsor a charitable, sports, or similar event provided however, a registered organization shall not engage in advertising at, or in connection with, such an event unless the registered organization has reliable evidence that at least 90%, unless otherwise determined by the Office, of the audience at the event and/or viewing advertising in connection with the event is reasonably expected to be twenty-one (21) years of age or older. Advertising and marketing at eligible events must comply with this Part.

(9) A registered organization shall limit the apparel displaying its brand and trademark used in connection with the sale of apparel displaying its brand to only adult sizes. Such apparel shall only be sold by the registered organization within its registered premises.

(10) A registered organization shall accurately and legibly include its name and registration number on all advertising and marketing for its products.

(11) A registered organization who advertises via a website or digital application shall have a mechanism designed to keep those under the age of twenty-one (21) from visiting the website or digital application, notwithstanding a certified patient or designated caregiver who is at least eighteen years of age and visiting the website to purchase medical cannabis.

(12) A registered organization who has entered into an intellectual property licensing agreement, marketing or advertising agreement or any other agreement in which a registered organization authorizes the use of its intellectual property, or allows a third party to market or advertise on its behalf, the registered organization is responsible to ensure that such agreement, intellectual property use, marketing or advertising shall comply with this Part.

(13) A registered organization shall comply with requests from the Office to change any marketing and advertisements that are determined to be false, misleading, or deemed necessary to protect public health and safety.

(14) A registered organization shall comply with any additional requirements as set forth by the Office.

(b) No marketing or advertising of medical cannabis products shall:

(1) depict medical cannabis not otherwise permitted by section 113.12 of this Part or paraphernalia;

(2) use or display images designed in any manner to be attractive to individuals under twenty-one (21);

(3) use audio that may be attractive to individuals under twenty-one (21), including but not limited to using children's voices or cartoon voices;

(4) be on or in the form of a billboard;

(5) use or display colloquial references to marijuana and cannabis or depictions or digital images or icons, whether animated or static, of cannabis, cannabis products, medical cannabis products, paraphernalia, or the imagery or action of smoking or vaping, including but not limited to "stoner", "chronic", "weed", "pot", or "sticky buds";

(6) assert that medical cannabis or medical cannabis products are safe or effective because they are regulated by the Board or Office;

(7) permit the use of their trademarks, brands, names, locations, or other distinguishing characteristics for third-party use on advertising in a manner that does not comply with this Part or any other statute, rule or regulation;

(8) contain any statement, design, representation, picture or illustration related to the safety or efficacy of medical cannabis, unless supported by substantial evidence or substantial clinical data which shall be referenced in the advertisement and provided to the Office upon request;

(9) contain favorable information or opinions about a medical cannabis product previously regarded as valid but which have been rendered invalid by contrary and more credible recent information;

(10) use a quote or paraphrase out of context or without citing conflicting information from the same source, to convey a false or misleading idea;

(11) contain favorable information or conclusions from a study that is inadequate in design, scope, or conduct to furnish significant support for such information or conclusions;

(12) use data favorable to a medical cannabis product derived from patients treated with a different product or form;

(13) disparage cannabis or medical cannabis products from another registered organization or licensed entity;

(14) fail to provide adequate emphasis for the fact that two (2) or more facing pages are part of the same advertisement when only one (1) page contains information relating to side effects, consequences and contraindications;

(15) disseminate any advertisement if the registered organization has received information that has not been widely publicized in medical literature that the use of any medical cannabis product may cause fatalities or serious damage to a patient;

(16) correct false or misleading information in any part of the advertisement by including a true statement in another distinct part of the advertisement;

(17) use the term "organic";

(18) contain any statement, design, representation, picture or illustration that encourages or represents the use of medical cannabis that does not comport with Article 3 of the Cannabis Law or promotes overconsumption;

(19) falsely portray medical cannabis or cannabis products as being in compliance with Article 4 and Article 5 of the Cannabis Law;

(20) contain any statement that indicates or implies that the product or entity in the advertisement has been approved or endorsed by any New York State employee or any person or entity associated with New York State provided that this shall not preclude a factual statement that an entity is a registered organization;

(21) encourage the transportation of medical cannabis across state lines or otherwise encourage illegal activity;

(22) contain any offer of a prize, award or inducement to a certified patient, designated caregiver or practitioner related to the purchase of a medical cannabis product or a certification for the use of medical cannabis, provided, however, that, this shall not be construed as to prohibit a registered organization from offering discounts or a discount program to certified patients and designated caregivers, for the purchase of medical cannabis product;

(23) advertise through the marketing of free promotional items including, but not limited to, gifts, giveaways, except for the provision of branded exit packages or items that assist with public safety efforts, such as a lock box or safety storage bag which may be provided by a registered organization for the benefit of certified patients;

(24) produce any items for sale or promotional gifts, such as T-shirts or novelty items, bearing a symbol of or references to medical cannabis. This prohibition shall not pertain to cannabis paraphernalia sold to certified patients or designated caregivers;

(25) depict a child or other person under the age of twenty-one (21) or reasonably appearing to be under the age of twenty-one (21). Talent portrayed in medical cannabis advertising should be a minimum of twenty-five years old, substantiated by proper identification, and an actual certified patient, designated caregiver or health care practitioner and not a model or actor;

(26) contain any obscene or indecent statement, design, or representation, picture, or illustration;

(27) be within or be readily observed within 500 feet of an elementary or secondary school grounds as defined in Education Law, recreation center or facility, childcare center, playground, public park, or library;

(28) be on or through handbills that are passed out in public areas including but not limited to parking lots and publicly owned property;

(29) utilize unsolicited pop-up or banner advertising on the internet other than on age-restricted websites for people twenty-one (21) and over who consent to view cannabis-related material, notwithstanding a certified patient or designated caregiver who is at least eighteen years of age and visiting the website to purchase medical cannabis;

(30) cooperate, directly or indirectly, in any advertising if such advertising has the purpose or effect of steering or influencing patient or caregiver choice with regard to the selection of a practitioner. Nothing contained within this section prevents a registered organization from educating practitioners about medical cannabis products offered by the registered organization; or

(31) violate any additional prohibitions determined by the Board or Office.

(c) A registered organization shall not use false or misleading information in any part of the advertisement. An advertisement is false, lacking in fair balance, or otherwise misleading if it:

(1) contains a representation or suggestion that one medical cannabis product, brand, or form is better, more effective, useful in a broader range of conditions or patients or safer than other drugs or treatments including other medical cannabis products or forms, unless such a claim has been demonstrated by substantial scientific evidence or clinical experience;

(2) contains favorable information or opinions about a medical cannabis product previously regarded as valid but which have been rendered invalid by contrary and more credible recent information;

(3) uses a quote or paraphrase out of context or without citing conflicting information from the same source, to convey a false or misleading idea;

(4) uses data favorable to a medical cannabis product derived from patients treated with a different product or form;

(5) contains favorable information or conclusions from a study that is inadequate in design, scope, or conduct to furnish significant support for such information or conclusions; or

(6) fails to provide adequate emphasis for the fact that two (2) or more facing pages are part of the same advertisement when only one (1) page contains information relating to side effects, consequences and contraindications.

(d) Outdoor Marketing and Advertising.

(1) Outdoor dispensing site signage for the purpose of alerting individuals to the location of a medical cannabis dispensing site is permitted provided such signs:

(i) are limited to the following information

(a) business or trade name,

(b) business location, and

(c) the nature of the business;

(ii) are affixed to a building or permanent structure;

(iii) are not illuminated by neon lights;

(iv) are not on vehicles owned, leased, or utilized by registered organizations;

(v) do not total more than two (2) in number per dispensing site; and

(vi) do not depict cannabis, cannabis products, or the imagery or action of smoking or vaping.

(2) Outdoor marketing or advertising is prohibited on signs and placards in arenas, stadiums, shopping malls, fairs that receive state allocations, and video game arcades, whether any of the foregoing are open air or enclosed, but does not include any such sign or placard located at an adult only facility or as further set out by the Office in guidance.

(3) Use of a commercial mascot is prohibited.

(4) A registered organization shall remove the outdoor signage if the Office determines the outdoor signage violates the provisions of Cannabis Law and this Part or if the registered organization fails to provide records to the Office upon request that establishes the outdoor signage meets the requirements of Cannabis Law and this Part.

(5) Outdoor dispensing site signage must comply with any additional requirements as set out by the Office.

(e) Marketing and Advertising Violations and Penalties.

(1) A registered organization shall immediately remove or discontinue advertising or marketing if the Board determines the advertising, marketing, or outdoor signage violates the provisions of the Cannabis Law and this Part or if the registered organization fails to provide records to the Office upon request that establishes the advertising and marketing meets the requirements of the Cannabis Law and this Part.

(2) In the event a third-party has used a registered organization's trademarks, brands, names, locations, or other distinguishing characteristics in an advertisement that does not comply with this Part or any other statute, rule or regulation, the registered organization must immediately notify the Office, issue a cease-and-desist notification to the third-party, and may pursue appropriate legal action.

(3) The Office may take any action against any registered organization who fails to comply with this Part, including but not limited to recommendations to the Board for suspension, cancellation, or revocation of a registration, imposition of any fees or fines, requiring a registered organization to cease by a date determined by the Office the non-compliant marketing and advertising and requiring removal by a date determined by the Office of any marketing material or advertising still being published or displayed, and any other penalties set forth in Cannabis Law and this Part 113.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 113.17

Adopted New York State Register February 22, 2023/Volume XLV, Issue 08, eff. 2/22/2023