Lessons from marketing wine on social media can be applied to legal marijuana — with caution
First, I am not a lawyer, so if you are a cannabis or wine marketer and have any questions, talk to a lawyer in more detail. I am just a wine marketer trying to break down some of the laws that create a regulated space in digital marketing.
Ever since the repeal of Prohibition in 1933, the laws for marketing alcohol have been rigid. Section 2 of the 21st Amendment specifies that the power to control alcohol resides with the states, which left each state to decide when and how to repeal Prohibition (granted, the Supreme Court recently handed out-of-state liquor retailers a big win). That led to what we are dealing with now: many states, and even different counties, operate under different wine distribution laws. We are also still dealing with some of the marketing laws created in '33.
With the invention of the internet and social media almost 100 years later, wine (and now cannabis) marketers have to deal with some of the laws created during a time when many people were simply purchasing their alcohol at the local pub.
What the ‘tied-house' law means in this digital world
Under the tied-house law specific to California, no alcoholic beverage manufacturer or supplier may “furnish, give, or lend any money or other thing of value, directly or indirectly” to an on- or off-premises alcohol beverage retailer.
What does this mean today?
When it comes to any marketing promotions, including social media, wine brands cannot favor one sales outlet or retailer over another. This law is actually a helpful one for smaller wine producers, because the retailer would not be able to give extra space to the bigger guys in exchange for that wine producer giving more “things of value” (i.e., marketing to that retailer).
In addition to the tied-house law, here are a few other wine marketing tactics (not a comprehensive list) that brands are not supposed to employ:
1. Show anyone under 21 in marketing. (And yes, this means sharing an image of your child at the tasting room, or helping in the vineyards.)
2. Promote drunkenness. That should be self-explanatory, but basically you cannot show anyone drinking wine out of the bottle or encourage intoxication.
3. Promote relaxation - taking extra care to steer clear of insinuating that wine could make people like you more.
4. Promote your brand to minors. This means making your social media ads 21-plus and not marketing your brand on Snapchat, where over 75% of the audience is under 25.
I must note that while these are general rules for marketing your wine brand, so far (to my knowledge) no one has been fined for sharing a picture of their daughter helping with harvest.
Wine marketer Megan Steppen from Untapped Media (untappedmediaco.com) has worked for large wine producers like Kendall Jackson, Sutter Home and Trinchero Family Estates, so she has had to be on top of the current wine and social media laws.
Now that she is working on her own to curate content for her wine clients, she advises them when it comes to their social media marketing efforts: “I always say a Facebook/Instagram post or a tweet is not worth a fine or losing your supplier license.”
As far as marketing cannabis - products based on CBD and THC, the nonhallucinogenic and psychoactive forms, respectively - right now it really is the Wild West online. A good rule of thumb some cannabis marketers follow is treating posts about their products similarly to posts about wine on social media. So, with that theory, anyone saying that CBD is great for relaxation is against marketing “laws.”
Getting started with cannabis marketing
In fact, CBD or hemp-derived products used in food or dietary supplements are regulated under the Federal Food Drug and Cosmetic Act (FDCA), and they do restrict what type of claims brands can make about products that are meant to be digested.
Habib Bentaleb, a cannabis lawyer based out of San Francisco (bentaleblaw.com), has spoken about cannabis laws before: “The FDA could send warning letters to companies that make general health-related statements.” He advises his cannabis clients to “be careful when you delve into making health-related statements; they've got to be backed up with scientific evidence.”
Other things to know about cannabis marketing:
1. There are strict rules around age restrictions, so marketers need to make sure their products are not appealing to minors.
2. Just like wine laws, at least 71.6% of the audience viewing your brand's marketing or advertising is expected to be over the age of 21.
When it comes to the companies regulating either the wine or cannabis industry, many agencies just don't have the manpower to police the entire industry.
“It's a lot like speeding on the freeway - practically everyone is doing it, but only the really bad ‘actors' (or the unlucky) are getting pulled over,” says Bentaleb.
Simply knowing the laws around digital marketing for your industry is the first step. Before you hire anyone to help with social media for your regulated product, make sure they are well-versed, and seek legal help if you have more questions.