Federal Prohibition of Cannabis Won’t Last Forever. What Then?


Federal Prohibition of Cannabis Won’t Last Forever. What Then?

February 7, 2020 | Education

After eight long decades, the federal prohibition of cannabis is crumbling—we can expect legalization as soon as next year, depending on who’s sat in the Senate after November. At that point, the pace of change in the industry will be lightning-quick.

You may have grown accustomed to working around national advertising limitations and fractured regulatory frameworks, but how can you prepare for the day that the chains come off?

Take a sneak peek at advertising regulations

If you’re wondering what advertising regulations might look like in the future, in many states where recreational cannabis is legalized, advertising laws are modeled on already-existing laws governing alcohol. The concern tends to be around; not advertising on media where children are a large part of the audience, not promoting over-consumption, and not making false claims about health benefits. While it’s a good idea to become familiar with the Federal Alcohol Administration Act (FAA), you’ll also find that many big alcohol brands have their own internal codes of conduct around marketing and advertising that unify state laws and set a standard for decency. Those marketing guidelines could serve as a good framework for the types of activity that will be successful for cannabis brands.

Get ready for the mainstream

A national cannabis brand is yet to be established. If you’ve already secured some investment and have been plotting the tricky logistics of national distribution, you may be thinking about your first big media spends. Before the pencil even hits the storyboard, you could prepare to be the first out of the gate with an unforgettable ad campaign by;

  • creating a strong proposition,
  • conducting audience and competitor research,
  • crafting a strong brand message,
  • making contacts with vendors and partners, and
  • setting up conversations with media buyers.

Online, maybe you’ve experimented with some micro-influencer campaigns, some organic content, or online advertorials. Keep testing, learning, and rigorously evaluating your messaging through those platforms so that when Google and Facebook lift their ad bans, you’ve refined your offering and can come in with a powerful first campaign.

Plan for disjointed packaging regulations

Expect states to have conflicting packaging regulations, at least at the beginning. Make sure your brand is flexible enough to have an impact across different types of packaging solutions.

Cannabis writer, Nick Kovacevich, tells Forbes, “While, for example, some states require that all cannabis packaging be resealable, others ban that type of packaging. Some laws require single-serving packaging, and others require all the product to be in one container.”

Lock down your intellectual property rights

Yes, going through the process of protecting your intellectual property is exactly as long and complicated as you imagine it might be, but early-acquired IP rights will prove indispensable. According to Marijuana Moment, “Beyond offering market protections and a competitive edge, IP rights can be licensed to generate additional recurring revenue, help attract investment, and enhance valuation for exits.”

The hard truth is that the right time to look into patent and trademark applications was yesterday, as there has been a drastic increase in filings over the past two years.

“IP rights vary widely but are best understood by first considering which aspects of your budding cannabis business that you want to protect—namely: your brand, your technology, your cannabis strains, your designs, or your business secrets.”

According to the National Law Review, design patents are quicker and cheaper to obtain; which may be desirable for fast-developing and/or cost-conscious companies and particularly for products with short life cycles.


If you need some help planning for success in a paradoxical future, please do get in touch. We’d love to help unpack the opportunities with you.


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