SeaWeed owner Scott Howard was fined $10,000 and ordered to stop using a mermaid in any merchandise, packaging or advertising. The issue is headed for a legal challenge. Hannah LaClaire/Staff Writer

A Maine lawmaker is proposing changes to the state’s marijuana advertising rules following complaints that the current system is too restrictive and subjective. 

Proposed by Rep. Colleen Madigan, D-Waterville, “An Act To Amend the Law Regarding the Advertising and Marketing of Adult Use Marijuana” would strengthen the appeal process for businesses found in violation of the state’s marijuana advertising rules. Despite the title, Madigan said in an interview Thursday, the bill, which is still in draft form, would apply to both medical and recreational businesses.

State officials say this SeaWeed Co. logo violates rules against using images of people or animals to sell cannabis products. Courtesy of SeaWeed Co.

According to rules for the state’s newly opened adult-use and long-running medical marijuana markets, packages or labels depicting humans, animals or fruit are prohibited, as are packages or labels that would “reasonably” appear to target or appeal to anyone under the age of 21.

Furthermore, the rules prohibit advertising or marketing of cannabis products “that is attractive to persons under 21 years of age … including images and items commonly marketed toward individuals under 21 years of age.”

In December, the Office of Marijuana Policy determined that South Portland’s SeaWeed Co. violated the rules by using a mermaid as its logo.

Vernon Malloch, compliance director for the Office of Marijuana Policy, wrote in a notice to SeaWeed owner Scott Howard that not only does the mermaid logo depict both a human and an animal, it also “is generally known that mermaids are featured in a number of stories, movies, toys, costumes and other popular culture items and marketing aimed at young children and teenagers, and so images of mermaids have inherent and particular appeal to individuals under 21 years of age.” 

At the time, Howard said SeaWeed’s “main objective is to make sure that our audience is 21-plus” and argued that the department’s rules are “vague and open to interpretation.”

Howard was fined $10,000 and ordered to stop using the mermaid in any merchandise, packaging or advertising. The issue is headed for a legal challenge.

The current language regarding logos is too vague, Madigan argues, as there are many images that will appeal to both children and adults without being used to market directly to children.

“I get the regulation that we don’t want stuff to appeal to little kids, but I also think there needs to be a broader look at it so that it’s not as subjective,” she said. “We don’t want just one person making that decision. We want there to be an appeal process (so) a person doesn’t lose their business because of this.”

As it’s still early in the process, Madigan said, many of the details still need to be developed.

In the current system, a business is fined and, to appeal, must request a formal hearing within 30 days.

But Madigan envisions a process for discussing the advertising, its intent and potential impact among all parties before it gets to that point.

According to Mark Dion, an attorney representing the United Cannabis Corp. and a former legislator, there would be an informal administrative hearing at which the business could present evidence to the state, perhaps a demographic or another marketing study, proving that the marketing materials were not designed to appeal to children.

“We’re saying yes, you have a right to regulate that, (but) the scope of protection in terms of the demographic may be a bit unwieldy,” Dion said. “They’re trying to protect a group of individuals from ‘children’ up to 20 years old, which is a pretty broad demographic. What’s attractive to a 20-year-old might not be of any consequence to a 7-year-old.”

Dion also argued that criteria should be more universal.

“If I’m giving advice to a client, I should be able to conclude pretty quickly that it will be accepted or not, but I can’t do that. It feels case-by-case. It’s pretty frustrating to the applicants and can feel arbitrary,” he said. “(The law) has to provide some latitude to the licensee that is marketing toward a demographic and not stand in their way.”

With Madigan’s proposal, the issue might have been resolved before it reached that point.

Medical marijuana caregivers especially are less likely to have the resources to fight a legal battle, and supporters believe the proposed legislation would provide a means for them to settle the issue before it gets out of hand, and hopefully leave with their logos intact. 

“A ton of people have started small (marijuana) businesses,” Madigan said.

“They employ a lot of people,” she said. “I want to do what I can to support people that are doing that.”