From the Legal Hotline (1-877-NEWS-LAW)

From the Legal Hotline (1-877-NEWS-LAW)

Q. We have an eye doctor in our city who wants to advertise writing prescriptions for medical marijuana for glaucoma patients- the question is he wants to use the terminology “prescription Mary Jane.” Do we have any legal problems with that? I’m not sure we will allow it either way, but first wanted to know if that slang was any type of advertising regulation violation.

A. Florida administrative rule 64B8-11.001 governs physician advertising. The ads must not be misleading because of the omission of necessary material information, must not contain any false or misleading statement, and otherwise must not operate to deceive. I don’t think using a colloquial reference to marijuana (Mary Jane) falls within that category.

There are, however, medical marijuana DISPENSARY ad rules that generally bar online ads targeted toward children or which promote recreational use of marijuana. I think the dispensary rules could offer good rules of thumb for physician MM ads in the paper, as well. If the colloquial reference can be interpreted to promote recreational as opposed to medical use, you have the editorial discretion to remove the reference.

Q. Is there an updated document or guidelines for cannabis dispensaries in Florida from FPA?
One of our vendors recently informed us we can market on behalf of dispensaries now in Fl via Email. Is that the case? We would like to get a definitive answer so we don’t go down a wrong path. Any guidance is appreciated.

A.Dispensary advertising/marketing is limited by law in Florida, as set forth below (s.381.986).

2. A medical marijuana treatment center may engage in Internet advertising and marketing under the following conditions:

  • a. All advertisements must be approved by the department.
  • b. An advertisement may not have any content that specifically targets individuals under the age of 18, including cartoon characters or similar images.
  • c. An advertisement may not be an unsolicited pop-up advertisement.
  • d. Opt-in marketing must include an easy and permanent opt-out feature.

The main requirement referenced above is that “Internet advertising and marketing” must be approved by DOH Office of Medical Marijuana Use. So, in this case, I would think that any direct solicitation whether by ads on the newspaper website or through an email “campaign” would need to be approved by OMMU.

That said, I understand that some companies use “content marketing” to highlight their brands making use of their owned media and content marketing channels such as blogs, websites, white papers and newsletters or opt-in programs like text message lists. I would think emails could be part of that sort of owned media campaign if structured properly. Here are a couple of articles:

Perhaps this is what your vendor is referring to.

Q. I’m a new sales/digital marketing rep at our paper and I wanted to email you regarding some questions I had concerning the legal restrictions on the marketing of hemp and CBD businesses in Florida.

We recently partnered with a whitelisted tech/digital marketing management company, and they offer programmatic advertising products ranging from geo-fencing to email campaigns; in addition to their various other bundles and plans they have one that is tooled to comply with federal laws concerning online marketing of tobacco, casinos, fireworks, cannabis/hemp, etc. The limitation to this however is they require us to verify limitations on digital advertising for restricted industries on the state and county level, which is something I’d need help doing.

One of the clients I planned to work with initially could benefit from email, display ad, and search engine marketing products offered to us through this company, but I wanted to check with someone more familiar with state law on these things before proceeding. If you could help me navigate some of this, I’d really appreciate it.

A. Regarding regulation of CBD/hemp product advertising in general, here are some regulations and tips that I hope are useful.

Regarding CBD oil product ads (print or digital), my understanding is that CBD oil from hemp (no marijuana) contains very small amounts of THC and is not psychoactive (although still considered beneficial for medicinal purposes). These products have been widely available in drug stores and are advertised–but questions on legality have remained.

On the federal level, FDA will be using discretion on when to step in and take enforcement actions against CBD companies. For example, they have said they will take action on over-the-top claims such as curing cancer or Alzheimer’s disease.

On the state level, Florida passed its hemp bill in 2019 (SB 1020) which confirms hemp-derived cannabidiol is not a controlled substance. The bill contains provisions on “hemp extract,” which may only be distributed and sold Florida if the product has a certificate of analysis prepared by an independent testing laboratory that states: 1) tested by the independent testing laboratory; 2) THC does not exceed 0.3 % and 3) is distributed or sold in specific type of packaging. [On the other hand, there have been a couple of crackdowns on CBD businesses in Florida after complaints arose from people getting sick using the products.]

The bottom line is I would review your CBD oil ads carefully. CBD ad claims such as it being a sleep aid, depression/mood/stress relief, etc. are currently in somewhat of a legal grey area. As mentioned, FDA has said it will be using discretion in enforcement but may take action on over-the-line “egregious and unfounded claims that are aimed at vulnerable populations” and marketing CBD products with claims “to treat cancer, arthritis, and leukemia, among other health conditions.” So, I think you should be cautious about taking the ads and avoid any “false, deceptive, or misleading” advertising.”

Here are some rules of thumb you may want to consider—

Do not accept ads that promote marijuana use or paraphernalia (bongs, pipes, etc.) are part of a CBD product ad.
Do not accept ads for CBD products that have false health benefit claims or are not approved by FDA. For example, claims that the pill will cure prostate cancer may invite scrutiny and I would avoid any ads that include such claims.
Accept only non/negligible-THC CBD ads.
Affirmative representation (email will do):

  1. Product is made from or 100% hemp-based product or contains negligible amount (or less than statutory amount) of THC.
  2. Health related claims meet FDA standards or approval

Q. I have a suggestion for a workshop or webinar that is partially your umbrellas I suppose and partially a member services issue.

The more I have learned and dabbled some with the capabilities of Photoshop’s new AI capabilities for photo editing, the more concerned I am in our liability and the ethics of accepting photos particularly from community submissions and stringers, but also in staffers – particularly newer ones without a proven track record with us.

What are the best practices in preventing AI-manipulated photos from finding their way into print? What is the potential liability of a paper for publishing such a manipulated image?
Are there tools that would assist us in avoiding such pitfalls? Or a program that would sniff out fakes? I feel it would be timely. After seeing the capabilities, I am concerned at this point over accepting any images that we don’t take ourselves.

A. I am not well-versed in the AI area as it is so new, but your questions are very timely. We included an AI session at the FL Media Conference in July in Sarasota and hope to do so again at next year’s conference.

That said, here are some basic thoughts–

I understand that the copyright office recently issued a letter that works/images created/generated from use of artificial intelligence (“AI”) technology is not the product of human authorship and cannot be protected by copyright. In other words, the work must be “actually formed” from human creative control. However, where humans end and machine-¬learning begins is a difficult line to draw and the copyright office will evaluate these issues on a case-by-case basis. Here is a link to an article discussing this issue in more detail. https://www.theartnewspaper.com/2023/05/04/us-copyright-office-artificial-intelligence-art-regulation

So, this brings us to your question. How can the paper know or at least be confident (in a timely way) that an image is AI generated such that it cannot be copyrighted and you have protection from copyright trolls? I am not sure if there is a way, unfortunately. I am not aware of any tools or software that would help in this regard.

I do think the best practice is what you indicate—do not accept images you don’t take yourself or have authorization to do so. As you know, several law firms are aggressive in this area and they scrape and monitor images on business websites which makes any unauthorized use of an image potentially problematic. Here is a white paper I put together explaining this problem in more detail and practices that might help you avoid being the target of such liability claims.

Q. I was contacted by an online news source from South Florida, non-member, who has questions about how to become Florida Public Notice verified. With all the changes to public notices I want to make sure I have the correct info. Is it still the case that all of those who sell public notices in Florida are required to post on https://www.floridapublicnotices.com/?

A. Newspapers running public/legal notices must upload them to FPA’s site at floridapublicnotices.com. Here, the online-only news sources must have a print component in order to run notices.

Q. Could you please clarify the current legislation regarding public notices for us? Can a publication that carries public notices give away totally free subscriptions to the online edition? Or must it be a paid circulation?

A. The printed newspaper must either have a USPS permit (which usually requires a paid publication). If it does not (e.g., a free weekly newspaper), the paper must meet the audited circulation thresholds in the new law. If the newspaper meets one of the basic requirements above, I don’t think giving away free subscriptions on its online edition should affect its status.