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California could ban pot shop T-shirts

July 24, 2017
California wants to ban pot shop merchandise
courtesy of Apothecarium
California wants to ban pot shop merchandise
SOURCE: courtesy of Apothecarium

At the online store Cafepress.com, you can buy a shirt emblazoned with an American flag and bearing the words: "The United States of Amerijuana ...with Brownies and Doobies For All."

That shirt, crass as it might be, is perfectly legal to sell, and will remain so, thanks to the First Amendment. But a stylishly lettered t-shirt that does not reference cannabis but is sold by The Apothecarium, a San Francisco medical cannabis dispensary, would be banned under legislation now making its way through the state legislature.

Sen. Ben Allen, D-Redondo Beach, is the sponsor of Senate Bill 162, which would prohibit cannabis businesses from selling or giving away promotional hats, t-shirts or any "branded merchandise" that bears the name or logo of a cannabis company or product.

Allen and his allies say the bill, which in May passed the Senate in a 40-0 vote, is meant to protect children. But for those whose businesses would be affected, the bill quash free speech.

"It's ridiculous," says Patrick Woods, co-owner of Lightningbug Branding, a Seattle maker of promotional products. "This tells small businesses that they can't advertise or promote themselves."

Vapor Room hats by Jeremy Fish
courtesy of Vapor Room
San Francisco dispensary The Vapor Room received a civic commendation from the City of San Francisco. Their branded hats featuring artwork by notable artist Jeremy Fish would be banned under a new California law.

Woods says that about 90 percent of his customers are in the cannabis industry, several of them in California.

Sen. Allen said he's sympathetic to small businesses but that his bill isn't aimed at them. It's aimed at "Big Cannabis," he said, which he anticipates, with the onset of recreational-use sales, may introduce mascots like Joe Camel (a cartoon character that for years served as the mascot for Camel cigarettes) and other imagery that could appeal to children.

California voters in November approved Proposition 64, legalizing adult use of cannabis and creating advertising rules -- including banning the use of cartoon characters and other imagery aimed at young people. Allen says that’s not enough.

"We need to do this now before Big Weed gets a lot of power," he said.

the legislation would ... actually help “Big Weed”

At the moment, "we all have a quaint image of a little pot farmer up in Humboldt working all by himself,” Allen added. "The fact is that tobacco in the beginning was a quaint little product in Jamestown."

If it were to pass, Allen's bill could be the most restrictive in the country. Colorado limits advertising in venues (like websites and TV shows) that are likely to be seen by children (just as California’s Proposition 64 does), but makes no mention of promotional materials. Washington restricts branded merchandise with a set of complicated rules that allow companies to distribute such goods as long as it's done by a separate entity.

Joe Camel and other imagery aimed at very young adults, if not squarely at kids, was banned in 1998 as part of the Tobacco Master Settlement Agreement, which restricted tobacco advertising in various ways and singled out marketing to children in particular. Such restrictions could conceivably target California cannabis companies, while still allowing them to promote themselves on branded merchandise.

Despite the general success of the tobacco settlement agreement, Dr. Jacques Corriveau insists that a more expansive blanket ban is necessary in the case of cannabis because "it's hard to distinguish what's aimed at kids and what isn't."

Corriveau is chairman of the State Government Affairs Committee of American Academy of Pediatrics - California, which opposed Proposition 64. The California Police Chiefs Association, which also opposed Proposition 64, supports Allen's bill.

Allen himself publicly supported Proposition 64 but says cannabis, like tobacco, is "not a necessary product," and therefore banning certain types of advertising for it passes legal muster.

Cannabis lobbyist Nate Bradley scoffs at that assertion, noting that tobacco causes lung cancer and studies show cannabis is not associated with such cancer risk.

Tim Andrews, president and CEO of the Advertising Specialty Institute, says the legislation would, contrary to Allen and Corriveau’s theory, actually help “Big Weed” gain market power. Allowing small companies to distribute such materials, Andrews says, would be "a great way to ensure that big entities are less able to come in and do that."

For small operators, branded merchandise is "the best" form of advertising, and thus "would help those small businesses protect themselves from Big Cannabis,” he adds.

The California Assembly's Appropriations Committee will take up the measure when lawmakers return from summer recess Aug. 21.

In the meantime, Sen. Allen says he's open to negotiations on what is, for now, a notably sweeping bill.The California Cannabis Industry Association, a leading pot lobby, did not respond to requests for comment. The California Growers Association is officially neutral on the bill. That group’s executive director, Hezekiah Allen, says that’s because he’s working with legislators to make it more palatable to the CGA’s members.

“We think it’s well-intentioned,” he says, in that it’s aimed at keeping cannabis companies from marketing to children.

But, as it stands, “it’s definitely a concern for our members.”

Dan Mitchell is a freelance journalist in Oakland. Follow him at @thepoteconomy.