What Could Cannabis Rescheduling Mean For Advertising in Cannabis?

In May 2024, the United States Department of Justice released a new proposal to reclassify marijuana into a category of less dangerous, prescription-eligible drugs. The movement plans to officially initiate the process of changing the regulatory status of cannabis products recognized as marijuana — downgrading the substance from the highly restricted and illegal Schedule I classification to Schedule III. 

Because the categorization of a controlled substance determines its availability, accessibility, and legal consequences, marijuana’s transition to Schedule III status would entail easier access to the drug by medical patients and clinical researchers across the country. Reclassifying marijuana into the Schedule III category will put medical cannabis in the class of drugs that have accepted medical use in the United States, with lower potential for abuse and addiction than legal prescription drugs listed as Schedule II, such as hydrocodone (Vicodin) or methylphenidate (Ritalin). 

Drugs in Schedule III are only available by prescription for the treatment of certain health conditions, and the class includes substances like ketamine, synthetic steroids, or Tylenol with codeine. So, rather than existing under complete federal prohibition, cannabis-derived drugs could be available by prescription, and those with a prescription would not face federal charges for possession of the drug.

What does this mean for the purveyors of medical cannabis products? More specifically, how will the new legal status of medical cannabis change producers’ ability to market their products containing legal marijuana? This article will explore these questions and clarify the restrictions on cannabis advertising in the United States, both current and in the potential future.

Current Rules for Marketing Cannabis Products

Since the enactment of the Controlled Substances Act (CSA) by the Nixon administration in 1970, marijuana (the legal term for cannabis plants, parts, and derivatives with over 0.3% tetrahydrocannabinol (THC)) has been classified as a Schedule I substance. This class of controlled substances is considered highly addictive and unsafe, and they are seen as having no accepted medical uses. Moreover, the possession of any of these drugs is a felony according to the US federal government, although individual states that have legalized cannabis recognize differing laws surrounding marijuana possession. 

Hence, with cannabis’ status as a Schedule I drug under the CSA, advertising for cannabis products classified as marijuana transmitted by interstate commerce is generally prohibited. Furthermore, since cannabis is federally illegal, using federal funds or federal services to advertise products could result in criminal penalties. This means marketing cannabis products via cross-state radio or television programs, and interstate telemarketing using federal airwaves is technically illegal. It is also illegal to transmit cannabis advertisements through mail using the US postal system. 

Currently, online advertisements for cannabis businesses are in a legal gray area. However, cannabis advertising on many platforms is prohibited, depending on the service provider. Whether cannabis businesses may market to the users of various social media sites or apps depends on factors such as a particular platform’s terms and conditions, the type of product being advertised, or the local laws of the company’s location.

Most states with legalized medicinal or recreational cannabis systems have already enacted their own regulations concerning advertisements for cannabis that reach the general public. These rules vary by state, with the range of possible restrictions including the size or visibility of physical signs, proximity of advertisements to schools, various advertisement content restrictions, and eligibility for event sponsorship. In addition, there are other regulations surrounding cannabis advertising that have been enacted at local or municipal levels. 

Advertisements for products containing cannabidiol (CBD) are also subject to state-level and local restrictions. Despite having been removed from the CSA after the enactment of the 2018 US Farm Bill, CBD products derived from hemp plants (a variety of cannabis plants containing less than 0.3% THC) are still subject to the rules of individual states. Furthermore, there are other FDA-enforced sanctions on how CBD products may be advertised. 

How Will the Reclassification of Cannabis Affect Marketing Restrictions?

Regulations for medical cannabis ads will still be subject to state and local level restrictions just as they are today. The movement to shift marijuana from Schedule I to Schedule III will not result in the national legalization of state-specific medical cannabis programs. Medical cannabis businesses, which may operate legally within the rules of their locations, will still generally be barred from marketing their products to consumers at the national level. This is in large part because, although cannabis products will no longer be classified as strictly illegal substances by the federal government, cannabis will still be a controlled substance available only by prescription. 

Prescription drug advertisements are overseen by the US Food and Drug Administration (FDA), and medicines that have not been approved by the FDA cannot be legally sold or promoted to the general public. Currently, the only cannabis-derived prescription drug that has been approved for medical use by the association is the CBD-based prescription medication Epidiolex, which is used to treat severe seizure disorders.

Therefore, since cannabis will only be legal to get by prescription, only FDA-approved prescription drugs will be technically legal to market to buyers at the national level. Yet, even FDA-approved cannabis-derived drug advertisements can still be required to meet the demands of state-specific laws about advertisements for cannabis products.

Thus, shifting cannabis to the Schedule III substance class could mean that more states and localities will move to enact their own laws about how and where cannabis-derived prescription drugs may be advertised to the public. 

On the other hand, the rescheduling of marijuana to Schedule III opens the possibility for new developments in drug trials by making it easier for researchers to access cannabis-derived substances, so other cannabis-derived medicines may enter the market and be eligible for advertising to the public.

Also, the new classification of cannabis will make it possible for the FDA to approve other cannabis-containing drugs that were strictly illegal and unavailable in the US before. For example, the FDA could move to approve the THC/CBD-based medication called Sativex, which is used to treat symptoms associated with multiple sclerosis and was approved in the UK over a decade ago, as well as in over 25 countries since then. 

Only approved prescription medicines like these would be able to legally make promotional material for different types of marketing in various states. So, you won’t be seeing products like the bud you find at a dispensary in drug advertisements any time soon. Instead, advertising would typically be limited to controlled pharmaceutical products approved by federal agencies for the treatment of specific diseases. 

Cannabis Advertising Online

Currently, social media platforms such as Facebook, Discord, Instagram, Snapchat, and TikTok have varying degrees of prohibition for cannabis advertising. The inconsistency makes the rules both hard to follow and enforce on these platforms. Some platforms will allow paid advertisements for cannabis in states where it is legal, while others fully ban paid advertising for cannabis products. 

There is more flexibility, however, when it comes to allowing advertisements marketing hemp-derived products, such as CBD oil. But the inconsistency in rule-making also emerges in this area because not all social media platforms distinguish CBD-based cannabis products from other cannabis products, which essentially excludes CBD products. 

Similarly, platforms like Google may provide search engine optimization (SEO) services for cannabis products, while also maintaining restrictions on direct advertising. For example, these providers may limit the visibility of certain ads or adjust SEO strategies to stop underage people from viewing them.

Reducing Cannabis Stigma Could Bring Unexpected Changes

Overall, moving marijuana products from the list of Schedule I substances will be a remarkable change for US drug policy and the culture surrounding cannabis. Yet, the details of advertising freedom for cannabis businesses are unlikely to drastically change, as most statewide legal cannabis programs will still have to operate outside federal law and regulations, and independent online media platforms maintain the right to establish terms and conditions about cannabis ads on their sites. 

Nevertheless, perhaps the change in scheduling will bring about cultural effects that will change advertising through shifting attitudes about cannabis use. For example, changes in the public’s acceptance of cannabis may encourage more individual social media providers to be open to expanding their terms to include cannabis ads for legal states. This would mean that more medical, and even recreational, cannabis businesses would be able to use platforms, such as Reddit and TikTok, to market their products to potential consumers of legal age in cannabis-friendly regions.