As the Morgenpost reported today, all Berlin cannabis clubs have to shut down their social media channels. But is that right? Advertising ban for CSC

As the Morgenpost reported today, all Berlin cannabis clubs have to shut down their social media channels. But is that right? Advertising ban for CSC - what applies?

The answer can be found in the KCanG. It states: ‘Advertising and any form of sponsorship for cannabis and for cultivation associations is prohibited.’

What is advertising is not defined by law. The BGH, federal high court, writes:

In common parlance, the term ‘advertising’ encompasses all measures undertaken by a company that are aimed at promoting the sale of its products or services. This includes not only direct product-related advertising but also indirect sales promotion, for example in the form of image advertising or sponsorship. Accordingly, in accordance with Article 2(a) of Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (OJ 2006 L 376, p. 21), advertising is any form of announcement in connection with a trade, trade, craft or liberal profession with the aim of promoting the sale of goods or the provision of services (BGH, judgment of 12 September 2013 - I ZR 208/12, VersR 2014, 1462 marginal no. 17 mwN - Empfehlungs-E-Mail). Direct advertising is given if the advertiser makes direct contact with a specific addressee, whether by personal address, letter or by using means of telecommunication such as telephone, fax or e-mail (Ohly in Ohly/Sosnitza, UWG, 6th ed., Section 7, para. 2).

The following must therefore be permitted:

• Factual information about product contents, e.g. THC content and origin.
• Neutral presentation of availability at licensed outlets.
• Likewise, references to association meetings

The above should not (!) serve to promote sales.

Impact of the advertising ban

The advertising ban has a significant impact, including here, on the newly emerging cannabis industry. CSC have to do without classic marketing strategies, which is particularly challenging for smaller companies.

For consumers, however, the ban also means that they have to rely on their own research, since advertising is not used as a source of information. Critics see a risk here that potential consumers will not be sufficiently informed. However, the ban does protect vulnerable groups from manipulative messages.

Controversy and criticism of the advertising ban

The strict advertising ban is polarising. Proponents argue that it is necessary to protect young people and vulnerable groups. They point to studies that show that advertising can strongly influence consumer behaviour. This appears to be the opinion of the LaGeSo.

Critics, on the other hand, complain that the restrictive regulations make it more difficult to establish a transparent and legal market. A comparison with countries such as Canada or the USA shows that less strict rules combined with educational campaigns have been successful there.

In addition, the Berlin view misses the point. A BGB association is an association of people with a common goal. If reference is made to events without any reference to membership or the like, this is not advertising, but only shows that the association is there.

Future prospects and possible adjustments

In view of the criticism, possible reforms are already being discussed. Proposals include:

• Relaxing the ban on advertising for factual information, e.g. on educational platforms.
• Introducing clear guidelines for transparent consumer information.
• Involving prevention campaigns to promote education about the risks of cannabis.

Whether and how these adjustments will be implemented remains to be seen. However, it is clear that social acceptance and understanding of legalisation are closely linked to the design of the advertising framework.

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FAQs

What is the main reason for the advertising ban in the KCanG? The advertising ban is intended to protect young people and other vulnerable groups from manipulative advertising messages and not to promote the use of cannabis.

Do all social media channels have to be deactivated? Probably not; setting to ‘private’ is likely to be a milder remedy.

How does the advertising ban differ from regulations for alcohol or tobacco? The advertising ban for cannabis is stricter because cannabis is considered a narcotic and should be more strictly regulated, especially with regard to young people.

Are there countries with less strict advertising rules for cannabis? Yes, countries like Canada or the USA allow some factual advertising, provided it is not aimed at minors.