'Wild West': Marketing of cannabis in places where it's outlawed is an emerging 'gray area'

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The ad proclaims “Life is Better With Legal Cannabis.” But for most of the readers who saw it in their morning paper, marijuana is not legal.

The ad from Canna Provisions gives the address, website and phone number of its store in Lee, Massachusetts. It ran on the bottom of the front page of the Aug. 30 Times-Union of Albany, New York. The paper is available on Berkshire County newsstand but decidedly not a Massachusetts publication.

The ad includes tiny, baseball box score-size type listing state-mandated disclaimers, concluding with, “This product may be illegal outside of MA.”

New York recently downgraded marijuana possession in small amounts from a misdemeanor to a violation, but it is still an arrestable offense punishable by fines.

The Massachusetts Cannabis Control Commission regulates advertising — no marijuana-leaf graphics, nothing related to sports, nothing to appeal to minors. But it doesn’t ban advertising out of state. The commission does require certain language, including the “This product may be illegal outside of MA” warning.

Canna Provisions opened a store in Lee, about 11 miles east of the New York state line, in June. The company began hiring last week for a store it plans to open this fall on Dwight Street in Holyoke, and it’s working on approvals for a marijuana growing operation in Lee. The company also has a proposal for a third shop, although it has not announced the location.

On a recent Sunday afternoon, four of the five cars in the parking lot of the Lee store had New York plates.

It’s a phenomenon not exclusive to Canna Provisions. Mayor David Narkewicz makes note of the out-of-state license plates he sees at the NETA in Northampton and what this out-of-town crowd might mean for city businesses that don’t sell marijuana.

When Canna Provisions starts doing business in Holyoke, co-founder Erik Williams said, it plans to advertise in Connecticut, another state where possession of small amounts of marijuana punishable by fines.

"Like the billboards we see every summer for the fireworks shops in New Hampshire," Williams said recently at a Canna Provisions job fair in Holyoke.

He spoke of cannabis tourism and how he has a vision for Holyoke as a sort of American Amsterdam where consumers can come and buy from a few marijuana retailers all set up in a central neighborhood around the canals.

Marijuana is illegal according to the federal government, even if now it seems the feds are taking a hands-off approach to states like Massachusetts that are legalizing it, said Julie E. Steiner, professor of law at Western New England School of Law in Springfield. Steiner is also a hired consultant for Mayor Domenic J. Sarno as the city of Springfield establishes its marijuana regulatory process.

"Interstate commerce, or any kind of advertisement that would promote interstate commerce, really flirts with federal intervention," Steiner said.

She said the law is only now catching up to the burgeoning adult-use marijuana industry. The Cannabis Control Commission hired enforcement personnel just this week.

“It’s the Wild West,” Steiner said. “We are hitting all kinds of issues about what is allowed and what’s not allowed.”

Especially sticky is the issue of marketing by a third party like a growers council or Weedmaps, a website for marijuana aficionados that also advertises on billboards.

“The regulations are very much geared to marijuana growers and retailers in Massachusetts,” Steiner said. “But what about other people?”

This advertisement for Canna Provisions in Lee, Massachusetts, appeared in the Aug. 30 Times-Union of Albany, New York. Marijuana possession is legal in the Bay State but not in the Empire State.

Marijuana retailer Theory Wellness in Great Barrington doesn’t advertise across state lines, said Marketing Director Thomas Winstanley, although the company isn’t shy about saying many of its customers are from New York.

“We do not run any paid advertising out of state. It is a gray area in the regulatory guidelines that we don’t want to meddle with,” Winstanley said.

But what happens when someone from outside the state comes into a Massachusetts marijuana shop as a customer?

The law doesn’t stop them from buying, only from transporting it across state lines. Smoking of any kind is banned in most public spaces and consumption is not allowed in stores, so someone from out of state would have to find a place in Massachusetts to legally smoke or consume the product.

Marijuana retailers know who is from outside Massachusetts. They are required check IDs to make sure every buyer is 21 or older.

“We treat all customers the same way. We answer any/all questions they have about what they want, how it will affect them — just about anything,” Winstanley said.

At Canna Provisions, Williams said the only time there is a problem is if a customer talks in the store about breaking the law. Like if the customer, unsolicited, says they plan to drive back to New York.

"We inform our customers about the law," he said.

And would they refuse service?

“If our customers persist in talking about breaking the law, then yes, we might do that,” he said.

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