WSR 17-24-119
PROPOSED RULES
LIQUOR AND CANNABIS
BOARD
[Filed December 6, 2017, 9:37 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 17-15-120.
Title of Rule and Other Identifying Information: Amendments to marijuana advertising rules in WAC 314-55-155 Advertising.
Hearing Location(s): On January 10, 2018, at 10:00 a.m., at the Board Room, 3000 Pacific Avenue S.E., Olympia, WA 98504.
Date of Intended Adoption: On or after January 24, 2018.
Submit Written Comments to: Joanna Eide, Policy and Rules Coordinator, 3000 Pacific Avenue S.E., Olympia, WA 98504, email Rules@lcb.wa.gov, fax 360-664-9689, by January 10, 2018.
Assistance for Persons with Disabilities: Contact Claris Nnanabu, ADA coordinator, human resources, phone 360-664-1642, TTY 711 or 1-800-833-6388, email Claris.Nnanabu@lcb.wa.gov, by January 5, 2018.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this rule making is [to] amend rules due to changes in advertising requirements for licensed marijuana businesses by the legislature during the 2017 legislative session. Proposed rule changes adjust rules relative to changes in the law, as well as additional clarifying changes needed to ensure advertising rules implement the changes to advertising restrictions as intended by the legislature. Proposed changes to rules provide additional guidance to licensed marijuana businesses for clarity on requirements and will promote clarity and consistency in enforcement.
Reasons Supporting Proposal: Rules must be consistent with and implement laws related to marijuana. Rule changes are needed to implement and ensure the intent of the legislature is carried out due to changes in the law regarding advertising by licensed marijuana businesses. Additional clarifying changes including definitions are needed for proper functionality of marijuana advertising regulations, clarity for the regulated industry, and enforcement of advertising requirements. Additional rule proposals regarding penalties for advertising violations as required under RCW 69.50.369(10) will be accomplished in a separate rule making as other changes to the same penalty rule are needed unrelated to advertising penalties.
Statutory Authority for Adoption: RCW 69.50.342, 69.50.345, and 69.50.369.
Statute Being Implemented: RCW 69.50.369.
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: Washington state liquor and cannabis board, governmental.
Name of Agency Personnel Responsible for Drafting: Joanna Eide, Policy and Rules Coordinator, 3000 Pacific Avenue S.E., Olympia, WA 98504, 360-664-1622; Implementation and Enforcement: Justin Nordhorn, Chief, 3000 Pacific Avenue S.E., Olympia, WA 98504, 360-664-1600.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is not required under RCW 34.05.328. A cost-benefit analysis was not required under RCW 34.05.325 because the subject of proposed rule making does not qualify as a significant legislative rule or other rule requiring a cost-benefit analysis under RCW 34.05.328(5).
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025(3) as the rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect; and rule content is explicitly and specifically dictated by statute.
Explanation of exemptions: This rule proposal incorporates changes to advertising requirements for licensed marijuana businesses set by the legislature in the 2017 legislative session. Changes are dictated by statute and include definitions and clarifying changes to ensure the intent of the legislature is carried out, clarity for the regulated marijuana industry, and proper enforceability. Additional changes to ensure rules are current, clear, and well organized are also proposed.
December 6, 2017
Jane Rushford
Chair
AMENDATORY SECTION (Amending WSR 16-11-110, filed 5/18/16, effective 6/18/16)
WAC 314-55-155 Advertising.
(((1) Advertising by retail licensees. The WSLCB limits each retail licensed premises to a maximum of two separate signs identifying the retail outlet by the licensee's business name or trade name. Both signs must be affixed to the building or permanent structure and each sign is limited to sixteen hundred square inches.
(2) General.)) The following provisions apply in addition to the requirements and restrictions in RCW 69.50.369.
(1) Advertising generally. The following requirements apply to all advertising by marijuana licensees in Washington state.
(a) All marijuana advertising and labels of usable marijuana, marijuana concentrates, and marijuana-infused products sold in the state of Washington must not contain any statement, or illustration that:
(((a))) (i) Is false or misleading;
(((b))) (ii) Promotes over consumption;
(((c))) (iii) Represents the use of marijuana has curative or therapeutic effects;
(((d))) (iv) Depicts a child or other person under legal age to consume marijuana, or includes:
(((i))) (A) The use of objects, such as toys, inflatables, movie characters, ((or)) cartoon characters suggesting the presence of a child, or any other depiction or image designed in any manner to be likely to be appealing to youth or especially appealing to children or other persons under legal age to consume marijuana; or
(((ii))) (B) Is designed in any manner that would be especially appealing to children or other persons under twenty-one years of age.
(((3))) (b) No ((licensed)) marijuana ((producer, processor, or retailer)) licensee shall place or maintain, or cause to be placed or maintained, an advertisement of a marijuana business or marijuana product, including marijuana concentrates, usable marijuana, or ((a)) marijuana-infused product:
(i) In any form or through any medium whatsoever((:
(a))) within one thousand feet of the perimeter of a school grounds, playground, recreation center or facility, child care center, public park, library, or a game arcade admission to which it is not restricted to persons aged twenty-one years or older unless the one thousand minimum distance requirement has been reduced by ordinance in the local jurisdiction where the licensed retailer is located and the licensed retailer is located within one thousand feet of a restricted location listed in this paragraph;
(((b))) (ii) On or in a private vehicle, public transit vehicle ((or)), public transit shelter, bus stop, taxi stand, transportation waiting area, train station, airport, or any similar transit-related location; ((or
(c) On or in a publicly owned or operated property.))
(c) All advertising for marijuana businesses or marijuana products, regardless of what medium is used, must contain text stating that marijuana products may be purchased or possessed only by persons twenty-one years of age or older. Examples of language that conforms to this requirement include, but are not limited to: "21+," "for use by persons 21 and over only," etc.
(d) A marijuana licensee may not engage in advertising or marketing that specifically targets persons residing out of the state of Washington.
(2) Outdoor advertising. In addition to the requirements for advertising in subsection (1) of this section, the following restrictions and requirements apply to outdoor advertising by marijuana licensees:
(a) Except for the use of billboards as authorized under RCW 69.50.369 and as provided in this section, licensed marijuana retailers may not display any outdoor signage other than two separate signs identifying the retail outlet by the licensee's business name or trade name, stating the location of the business, and identifying the nature of the business. Both signs must be affixed to a building or permanent structure and each sign is limited to sixteen hundred square inches.
(i) All outdoor signs, including billboards, are limited to text that identifies the retail outlet by the licensee's business or trade name, states the location of the business, and identifies the type or nature of the business.
(ii) No outdoor advertising signs, including billboards, may contain depictions of marijuana plants or marijuana products.
(A) A depiction of a marijuana plant means an image or visual representation of a cannabis leaf, plant, or the likeness thereof that explicitly suggests or represents a cannabis leaf or plant.
(B) A depiction of a marijuana product means an image or visual representation of usable marijuana, marijuana-infused products, or marijuana concentrates, or an image that indicates the presence of a product, such as smoke, etc.
(iii) Stating the location of the business may include information such as the physical address or location, directional information, web site address, email address, or phone number of the licensed business.
(iv) Identifying the nature of the business may include information related to the operation of the business, what the business is engaged in, or the goods the business offers for sale.
(v) Double-sided signs or signs with text visible on opposite sides are permissible and count as a single sign so long as the sign is contained in or affixed to a single structure.
(b) No marijuana licensee may use or employ a commercial mascot outside of, and in proximity to, a licensed marijuana business.
(c) Outdoor advertising is prohibited on signs and placards in arenas, stadiums, shopping malls, fairs that receive state allocations, farmers markets, and video game arcades, whether any of the foregoing are open air or enclosed, but not including any such sign or placard located at an adult only facility.
(d) The restrictions in this section and RCW 69.50.369 do not apply to outdoor advertisements at the site of an event to be held at an adult only facility that is placed at such site during the period the facility or enclosed area constitutes an adult only facility, but must not be placed there more than fourteen days before the event, and that does not advertise any marijuana product other than by using a brand name, such as the business or trade name or the product brand, to identify the event. Advertising at adult only facilities must not be visible from outside the adult only facility.
(e) A sign affixed to the licensed premises or in the window of a licensed premises indicating the location is open for business, closed for business, the hours of operation, or that the licensed location has an ATM inside is not considered advertising for the purposes of this section.
(f) "Adopt-a-Highway" signs erected by the Washington state department of transportation under a current valid sponsorship with the department of transportation are not considered advertising for the purposes of this section.
(3) Advertising or signs within the premises of a licensed marijuana retail store that may be visible from outside the premises must meet the requirements for outdoor advertising as provided in RCW 69.50.369 and this section.
(4) Promotional items such as giveaways, coupons, and distribution of branded or unbranded merchandise are banned.
(5) Marijuana retail licensees holding a medical marijuana endorsement may donate product to qualifying patients or designated providers who hold a valid recognition card. Retail licensees may not advertise "free" or "donated" product.
(6) Except for outdoor advertising under subsection (2) of this section, all advertising must contain the following warnings that must be in type size at least ten percent of the largest type used in the advertisement:
(a) "This product has intoxicating effects and may be habit forming.";
(b) "Marijuana can impair concentration, coordination, and judgment. Do not operate a vehicle or machinery under the influence of this drug.";
(c) "There may be health risks associated with consumption of this product."; and
(d) "For use only by adults twenty-one and older. Keep out of the reach of children."
(7) For the purposes of this section, the following definitions apply:
(a) "Adult only facility" means:
(i) A location restricted to persons age twenty-one and older by the WSLCB or classified by the WSLCB as off limits to persons under twenty-one years of age; or
(ii) A venue restricted to persons age twenty-one and older and where persons under twenty-one years of age are prohibited from entering or remaining, including employees and volunteers.
(b) "Billboard" means a permanent off-premises sign in a fixed location used, in whole or in part, for the display of off-site commercial messages with a minimum size of ten feet in height by twenty feet in width.
(c) "Off-premises sign" means a sign relating, through its message and content, to a business activity, product, or service not available on the premises upon which the sign is erected.