On May 21, the Cannabis Control Commission quietly published a
bulletin on its website that will immediately impact retailers already struggling to maintain footing in the competitive Massachusetts market. The bulletin, which was emailed on May 29, states that adult-use marijuana establishments that are posting “reduced or promotional pricing offered on their in-store and online menus” or using “terms including, but not limited to “sale,” “discount,” “purchase program,” “xx% off,” [or] showing strike-throughs of higher prices next to lower prices” on online menus are violating regulations regarding prohibited advertising practices at 935 CMR 500.105(4)(b)20. Note that these advertising restrictions do not apply to medical marijuana treatment centers or co-located marijuana operators communicating with medical patients.
As a reminder, CCC regulations define “advertising” as “a form of marketing communication that employs a sponsored, non-personal message to sell or promote a Marijuana Establishment’s/Marijuana Treatment Center’s (“MTC”) Brand Name, Marijuana Establishment/MTC Branded Good, service, product or idea.”
Most retailers currently post updated pricing (including price drops or other promotions) on their websites in reliance on the CCC’s longstanding interpretation that communicating such pricing and promotional information is permitted when conveyed to a consumer inside the dispensary or through an opt-in email or text newsletter under which a consumer can click to opt out.
The CCC’s new bulletin attempts to draw a distinction between a consumer in the store where the pricing communication is “personalized,” versus a website where the CCC deems that communication as a “ broadcast to attract a larger audience” and thus, “non-personal.” The CCC draws a distinction between websites and opt-in newsletters based on the fact that a consumer cannot opt out of viewing a website promotion, even when the consumer must click through an age gate as required by regulations.
Regardless of the merit of the CCC’s new interpretation of 935 CMR 500.105(4)(b)20, retailers should be mindful of the new bulletin.
