NewsBeat

20 NewsBeat March 2016 Medical Marijuana Advertising he NYS Department of Health has promulgated regulations governing the use of medical marijuana. The regulations spell out permissible language to be used in advertising — the specifics are detailed below. Note the NYS DOH regulations require pre-approval of the content and design of any ads before they run. NYPA recommends that newspapers consider implementing a policy that requires that the advertiser provide a copy of the DOH's approval of the ad before the newspaper accepts and publishes the ad. Complicating things a bit more, the United States Postal Service has issued several memorandums advising newspapers that if a mail piece contains ads for marijuana, that mail piece is non-mailable. Marijuana is listed in the federal Controlled Substance Act, which prohibits advertising in newspapers, magazines, handbills and other publications. But, there's a twist: the USPS has no authority to stop mailers if their publications contain marijuana ads. Local postal officials lack the authority to make a determination on their own about whether a parcel is mailable or non-mailable. A new postal policy directs postmasters to send a report to the US Postal Inspection Service, which is the law enforcement arm of the USPS. In theory, the matter would be then turned over to law enforcement for prosecution, although it is unclear what kind of crime would be prosecuted. Federal authorities have generally not cracked down on marijuana sales in states where it is legalized. That said, the policy means that pot ads are off limits to newspapers that use the USPS to deliver their newspapers. The policy also prohibits direct mail companies from mailing pieces advertising marijuana. So, should newspapers feel safe publishing marijuana ads? Members of Congress have stated publicly that the legal interpretation from the USPS is outdated and uncompromising. As with most of our dealings with the USPS, things are complicated, confusing, and contradictory. §1004.16 Medical marihuana marketing and advertising by registered organizations (d) All advertisements, regardless of form, for approved medical marihuana products that make a statement relating to effectiveness, side effects, consequences, and contraindications shall present a true and accurate statement of such information. (e) An advertisement does not satisfy the requirement that it presents a "true and accurate statement" of information relating to effectiveness, side effects, consequences, and contraindications if it fails to present a fair balance between information relating to effectiveness, side effects, consequences, and contraindications in that the information relating to effectiveness is 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. (f) An advertisement is false, lacking in fair balance, or otherwise misleading if it: (1) contains a representation or suggestion that one marihuana brand or form is better, more effective, useful in a broader range of conditions or patients or safer than other drugs or 76 treatments including other marihuana brands or forms, unless such a claim has been demonstrated by substantial scientific or clinical experience; (2) Contains favorable information or opinions about a marihuana 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 a study on persons without a debilitating medical condition without disclosing that the subjects were not suffering from a debilitating medical condition; (5) Uses data favorable to a marihuana product derived from patients treated with a different product or dosages different from those recommended in New York State; (6) 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 (7) Fails to provide adequate emphasis for the fact that two or more facing pages are part of the same advertisement when only one page contains information relating to side effects, consequences and contraindications. 77 (g) False or misleading information in any part of the advertisement shall not be corrected by the inclusion of a true statement in another distinct part of the advertisement. (h) An advertisement for any approved medical marihuana product shall not contain: (1) any statement that is false or misleading; (2) any statement that falsely disparages a competitor's products; (3) any statement, design, or representation, picture or illustration that is obscene or indecent; (4) any statement, design, representation, picture or illustration that encourages or represents the use of marihuana for a condition other than a serious condition as defined in subdivision seven of section thirty-three hundred sixty of the public health law; (5) any statement, design, representation, picture or illustration that encourages or represents the recreational use of marihuana; (6) any statement, design, representation, picture or illustration related to the safety or efficacy of marihuana, unless supported by substantial evidence or substantial clinical data; 78 (7) any statement, design, representation, picture or illustration portraying anyone under the age of 18, objects suggestive of the presence of anyone under the age of 18, or containing the use of a figure, symbol or language that is customarily associated with anyone under the age of 18; (8) any offer of a prize, award or inducement to a certified patient, designated caregiver or practitioner related to the purchase of marihuana or a certification for the use of marihuana; or (9) any statement that indicates or implies that the product or entity in the advertisement has been approved or endorsed by the commissioner, department, New York State 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. (i) Any advertisement for an approved medical marihuana product shall be submitted to the department at least 30 business days prior to the public dissemination of the advertisement. (j) The submitter of the advertisement shall provide the following information to the department in addition to the advertisement itself: (1) A cover letter that: (i) provides the following subject line: Medical marihuana advertisement review package for a proposed advertisement; 79 (ii) provides a brief description of the format and expected distribution of the proposed advertisement; and (iii) provides the submitter's name, title, address, telephone number, fax number, and email address; (2) an annotated summary of the proposed advertisement showing every claim being made in the advertisement and which references support for each claim; (3) verification that a person identified in an advertisement as an actual patient or health care practitioner is an actual patient or health care practitioner and not a model or actor; (4) verification that a spokesperson who is represented as an actual patient is indeed an actual patient; (5) verification that an official translation of a foreign language advertisement is accurate; (6) annotated references to support disease or epidemiology information, cross-referenced to the advertisement summary; and (7) a final copy of the advertisement, including a video where applicable, in a format acceptable to the department. 80 (k) Advertising packages that are missing any of the elements in subdivision (j) of this section, or that fail to follow the specific instructions for submissions, shall be considered incomplete. If the department receives an incomplete package, it shall so notify the submitter. T

• Cover