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AB-273 Cannabis: advertisements: highways.(2021-2022)

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Date Published: 04/26/2021 10:00 AM
AB273:v98#DOCUMENT

Amended  IN  Assembly  April 26, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 273

Introduced by Assembly Member Irwin

January 19, 2021

An act to amend Section 26152 of of, and to add Section 26152.5 to, the Business and Professions Code, relating to cannabis.


LEGISLATIVE COUNSEL'S DIGEST


AB 273, as amended, Irwin. Cannabis: advertisements: highways.
Existing law, the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA), an initiative measure approved as Proposition 64 at the November 8, 2016, statewide general election, authorizes a person who obtains a state license under AUMA to engage in commercial adult-use cannabis activity pursuant to that license and applicable local ordinances. Existing law, the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), among other things, consolidates the licensure and regulation of commercial medicinal and adult-use cannabis activities. MAUCRSA generally divides responsibility for the state licensure and regulation of commercial cannabis activity among the Department of Food and Agriculture, the State Department of Public Health, and the Bureau of Cannabis Control, which MAUCRSA establishes within the Department of Consumer Affairs.

MAUCRSA prohibits a licensee from advertising or marketing on a billboard or similar advertising device located on an interstate highway or on a state highway that crosses the California border.

This bill instead would prohibit a licensee from advertising or marketing on a billboard or similar advertising device visible from an interstate highway or on a state highway within California.

Existing law places various advertising and marketing restrictions on licensees, including prohibiting a licensee from publishing or disseminating advertising or marketing that is attractive to children, from advertising or marketing cannabis or cannabis products on an advertising sign within 1,000 feet of a day care center, school, or youth center, and from advertising or marketing on a billboard or similar device visible from an interstate highway or on a state highway within California.
This bill would remove the existing reference to advertising or marketing on a billboard or similar device visible from an interstate highway or on a state highway within California, and would specify that a licensee seeking to advertise or market through broadcast, cable, radio, print, and digital communications is required to obtain reliable up-to-date audience composition data demonstrating that at least 71.6 percent of the audience viewing the advertising or marketing is reasonably expected to be 21 years of age or older. The bill would prohibit advertisements or marketing depicting images of minors or anyone under 21 years of age. The bill would specify that a licensee is prohibited from using objects, in its advertising or marketing, such as toys, inflatables, movie characters, cartoon characters, or from including any other display, depiction, or image designed in any manner likely to be appealing to minors. The bill would restrict a licensee from advertising free cannabis goods or giveaways of any type of products, including noncannabis products, as specified. The bill would require that all outdoor signs, including billboards, meet specified requirements, including, among others, that they be affixed to a permanent structure; that they not be placed in any location where other advertisements directed at an adult population are prohibited; that they comply with specified provisions of law; that they not contain text, except as provided; and that they do not display, depict, or image specified objects and actions, including animals, cannabis plants, leaves, food, beverages, smoking, and vaporizing, among others. The bill would require a licensee to provide the Bureau of Cannabis Control audience composition data immediately upon request. If the bureau determines that the audience composition data for advertising or marketing provided by a licensee does not comply with these provisions, or the licensee fails to provide audience composition data, the bill would require the licensee to remove the advertising or marketing placement in question. The bill would require a licensing authority to suspend a licensee’s license for one year if the licensee violates the advertising and marketing restrictions. The bill would specify that the action, omission, or failure of an advertising agent, representative, or contractor retained by the licensee is an act, omission, or failure of the licensee.
The Control, Regulate and Tax Adult Use of Marijuana Act, an initiative measure, authorizes the Legislature to amend the act to further the purposes and intent of the act with a 2/32/3 vote of the membership of both houses of the Legislature, except as provided.
This bill would declare that its provisions further the purposes and intent of the Control, Regulate and Tax Adult Use of Marijuana Act.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Control, Regulate and Tax Adult Use of Marijuana Act (AUMA) explicitly lists protecting children from marijuana consumption as a primary objective of the act in AUMA’s findings and declarations, found in Section 2 of AUMA.
(b) AUMA’s findings and declarations also explicitly mandate that marijuana and marijuana products cannot be advertised or marketed towards children in subdivision (d) of Section 2 and subdivision (j) of Section 3 of AUMA.
(c) AUMA further specifies in paragraph (1) of subdivision (c) of Section 26130 of the Business and Professions Code that marijuana products, “shall not be designed to be appealing to children or easily confused with commercially sold candy or foods that do not contain marijuana.”
(d) AUMA also states in subdivision (b) of Section 26151 of the Business and Professions Code that advertising for marijuana products “shall only be displayed where at least 71.6 percent of the audience is reasonably expected to be 21 years of age or older, as determined by reliable, up-to-date audience composition data.”
(e) AUMA provides that “no licensee shall advertise or market on a billboard or similar advertising device located on an Interstate Highway or State Highway which crosses the border of any other state.” (subdivision (d) of Section 26152 of AUMA.)
(f) Proponents of AUMA stated in the Rebuttal to Argument Against Proposition 64 in the Official Voter Guide for the November 8, 2016, election that: “Prop. 64 contains the nation’s strictest child protections: warning labels, child-resistant packaging, and advertising restrictions, and it requires keeping marijuana out of public view, away from children.”
(g) Despite the promises made to voters about protecting children from cannabis advertising and restricting the advertising of cannabis products to out of public view, billboards containing advertisements for cannabis-infused candy, food, and beverages have proliferated across the state along interstate and state highways.
(h) According to the Journal of Studies on Alcohol and Drugs, published by the Center of Alcohol & Substance Use Studies at Rutgers University, “Recreational marijuana legalization in California was associated with an increase in adolescent marijuana use in 2017–2018 and 2018–2019.” Using data from the California Healthy Kids Survey, researchers observed significant increases in the prevalence of lifetime and past 30-day marijuana use among nearly all demographic groups from the 2017–2018 to 2018–2019 school years, after legalization of adult recreational use, an 18-percent increase in the likelihood of lifetime use, and a 23-percent increase in past 30-day use. This increase follows a seven-year decline in marijuana use, prevalence from 2010–2011 to 2016–2017, which can be contrasted with national data from the Youth Risk Behavior Survey that show continued declines in current marijuana use among high school students from 2011 through 2017.
(i) Children and families regularly travel along interstate and state highways, resulting in constant exposure to billboards advertising cannabis licensees and cannabis products. Such billboards often include depictions of cannabis plants and cannabis-infused products, including gummies, hard candies, licorice, chocolates, beverages, and other edibles that appeal to children.
(j) In January 2019, the Bureau of Cannabis Control (BCC) enacted a regulation to allow cannabis advertisements along interstate and state highways so long as the billboards are located further than 15 miles from the California border. In October 2019, a San Luis Obispo parent, who was concerned about regularly driving their children past a visible cannabis billboard on Highway 101, took legal action to challenge the BCC’s interpretation of AUMA and other state law. The challenge was successful and in December 2020, the court invalidated the BCC regulations, reasoning they were too permissive in authorizing advertising not allowed under AUMA (Matthew Farmer v. Bureau of Cannabis Control (2020) Superior Court of California, County of San Luis Obispo, Case No. 19CV-0597).
(k) Because of these continuing, egregious violations of AUMA and the clear impact that it has had on youth marijuana use, the Legislature must enact additional restrictions relating to the content of cannabis advertisements in order to protect children from exposure to cannabis advertising and further the original intent of the Control, Regulate and Tax Adult Use of Marijuana Act.

SECTION 1.SEC. 2.

 Section 26152 of the Business and Professions Code is amended to read:

26152.
 A licensee shall not do any of the following:
(a) Advertise or market in a manner that is false or untrue in any material particular, or that, irrespective of falsity, directly, or by ambiguity, omission, or inference, or by the addition of irrelevant, scientific, or technical matter, tends to create a misleading impression.
(b) Publish or disseminate advertising or marketing containing any statement concerning a brand or product that is inconsistent with any statement on the labeling thereof.
(c) Publish or disseminate advertising or marketing containing any statement, design, device, or representation which tends to create the impression that the cannabis originated in a particular place or region, unless the label of the advertised product bears an appellation of origin, and such appellation of origin appears in the advertisement.

(d)Advertise or market on a billboard or similar advertising device visible from an interstate highway or on a state highway within California.

(e)

(d) Advertise or market cannabis or cannabis products in a manner intended to encourage persons under 21 years of age to consume cannabis or cannabis products.

(f)

(e) Publish or disseminate advertising or marketing that is attractive to children.

(g)

(f) Advertise or market cannabis or cannabis products on an advertising sign within 1,000 feet of a day care daycare center, school providing instruction in kindergarten or any of grades 1 to 12, inclusive, playground, or youth center.

(h)

(g) Publish or disseminate advertising or marketing while the licensee’s license is suspended.

SEC. 3.

 Section 26152.5 is added to the Business and Professions Code, to read:

26152.5.
 (a) Any advertising or marketing, as defined in Section 26150, that is placed in broadcast, cable, radio, print, and digital communications shall meet the following qualifications:
(1) Only be displayed after a licensee has obtained reliable up-to-date audience composition data demonstrating that at least 71.6 percent of the audience viewing the advertising or marketing is reasonably expected to be 21 years of age or older.
(2) Not use depictions or images of minors or anyone under 21 years of age.
(3) Not contain the use of objects, such as toys, inflatables, movie characters, cartoon characters, or include any other display, depiction, or image designed in any manner likely to be appealing to minors or anyone under 21 years of age.
(4) Not advertise free cannabis goods or giveaways of any type of products, including noncannabis products. This includes, but is not limited to, the following promotions:
(A) Buy one product, get one product free.
(B) Free product with any donation.
(C) Contests, sweepstakes, or raffles.
(b) In addition to the requirements for advertising and marketing in Section 26151, Section 26152, and subdivision (a), all outdoor signs, including billboards, shall meet all the following requirements:
(1) Be affixed to a building or permanent structure.
(2) Comply with the provisions of the Outdoor Advertising Act (commencing with Section 5200), if applicable.
(3) Not be placed in any location where other advertisements directed at an adult population are prohibited, including, but not limited to, alcohol, tobacco, and gambling activities.
(4) Not contain any text other than the following:
(A) The licensee’s business or trade name and license number.
(B) The licensee’s physical address or location, directional information, and telephone number.
(C) The licensee’s website, which shall not include any images or logos representing social media platforms.
(D) Information accurately identifying the nature of the business, including text related to the operation of the licensee’s business, or what the business the licensee is engaged in.
(5) Not contain a display, depiction, or image of any of the following:
(A) Animals, cannabis plants or leaves, or food or beverage products designed to be appealing to children or easily confused with commercially sold candy or foods that do not contain cannabis, including, but not limited to, the following:
(i) Gummy, chewy, or hard candies and other confectionaries.
(ii) Cookies, brownies, and other baked goods.
(iii) Chocolates and truffles.
(iv) Sodas, energy drinks, coffees, and teas.
(v) Chips and crackers.
(vi) Nuts and trail mixes.
(vii) Sauces, dressings, and condiments.
(B) The smoking, vaporizing, or ingesting of cannabis or cannabis products, or food or beverages implied to be cannabis infused.
(C) Any text, display, depiction, or image that contains or implies any content associated with any television, film, or print media generally marketed toward minors.
(c) For the purposes of this section, “reliable up-to-date audience composition data” means data regarding the age and location demographics of the audience viewing a particular advertising or marketing medium. “Reliable up-to-date audience composition data” does not include data from the most recent United States decennial or special census, or the annual population estimate for California counties published by the Demographic Research Unit of the Department of Finance.
(d) Immediately upon request, a licensee shall provide to the bureau audience composition data as required in subdivision (a) for advertising or marketing placed by the licensee.
(e) If the bureau determines that the audience composition data for advertising or marketing provided by a licensee does not comply with the requirements of subdivision (a), or the licensee fails to provide audience composition data to the bureau upon request, the licensee shall remove the advertising or marketing placement in question.
(f) The licensing authority shall suspend the license of any licensee who violates the provisions of this section for one year.
(g) In construing and enforcing the advertising provisions of this act, any action, omission, or failure of an advertising agent, representative, or contractor retained by the licensee shall in every case be deemed the act, omission, or failure of the licensee.
(h) If any parts of this section are found to be in conflict with federal law or the United States or the California Constitution, this section shall be implemented to the maximum extent that federal law, and the United States and the California Constitution permit. Any provision held invalid shall be severed from the remaining portions of this act.

SEC. 2.SEC. 4.

 The Legislature finds and declares that this act furthers the purposes and intent of the Control, Regulate and Tax Adult Use of Marijuana Act.