Twitter Is The First Major Social Media Platform to Expressly Allow Cannabis Advertising
Twitter became the first social media platform to expressly allow cannabis advertising. Effective last week, Twitter’s U.S. ad policy states as follows:
What’s the policy?
Twitter prohibits the promotion of drugs and drug paraphernalia.
Examples of drugs and drug paraphernalia include:
- Illegal drugs
- Recreational and herbal drugs
- Accessories associated with drug use
- Drug dispensaries
- Depictions of hard drug use
We permit approved Cannabis (including CBD– cannabinoids) advertisers to target the United States, subject to the following restrictions:
- Advertisers must be licensed by the appropriate authorities, and pre-authorized by Twitter.
- Advertisers may only target jurisdictions in which they are licensed to promote these products or services online.
- Advertisers may not promote or offer the sale of Cannabis (including CBD– cannabinoids)
- Exception: Ads for topical (non-ingestible) hemp-derived CBD topical products containing equal to or less than the 0.3% THC government-set threshold.
- Advertisers are responsible for complying with all applicable laws, rules, regulations, and advertising guidelines.
- Advertisers may not target customers under the age of 21.
Any advertisement for Cannabis (including CBD– cannabinoids) content that is allowed, subject to the above restrictions, must in addition:
- Not appeal to minors in the creative, and landing pages must be age gated and sales must be age verified.
- Not use characters, sports-persons, celebrities, or images/icons appealing to minors.
- Not use minors or pregnant women as models in advertising.
- Not make claims of efficacy or health benefits.
- Not make false/misleading claims.
- Not show depiction of cannabis product use.
- Not depict people using or under the influence.
- Not encourage transport across state lines.
Contact Twitter if you are interested in this option.
As with so many issues in the cannabis space, this policy raises questions about federal law, which expressly prohibits advertising sale of a Schedule I narcotic. The federal Controlled Substances Act states: “It shall be unlawful for any person to place in any newspaper, magazine, handbill, or other publicatio[n], any written advertisement knowing that it has the purpose of seeking or offering illegally to receive, buy, or distribute a Schedule I controlled substance.” The act goes on to state that it is also illegal to use the internet for such purposes.
Importantly, although the provision refers to “advertisement” in “its ordinary meaning” the prohibition on advertising includes an exception. The CSA states: “[t]he term “advertisement” does not include material which merely advocates the use of a similar material, which advocates a position or practice, and does not attempt to propose or facilitate an actual transaction in a Schedule  I controlled substance.” In addition, a separate exception states that Section A (the prohibition) does not apply to material that “merely advocates the use of a controlled substance or includes pricing information without attempting to facilitate an actual transaction involving a controlled substance.”
Based on the plain language, Twitter’s policies attempt to respect these limitations, which have not been the subject of federal enforcement despite the exponential growth in the cannabis industry in recent years. In addition, Twitter’s updated policies also convey general consistency with the patchwork of state cannabis advertising laws, to the extent they allow for digital advertising. Nevertheless, even if law enforcement and regulators do not raise an eyebrow, one must wonder whether blue chip companies will risk returning to Twitter if their logo may be featured next to a marijuana brand. The answer may depend on whether other social media platforms follow Twitter’s lead.