Trend of Cannabis Influencers and the Laws of Influencer Marketing (in a Regulated Space)

I may sound like a broken record…but I want to bring up the subject of influencers yet again. I would like to bring to light some of the things that are happening behind the scenes of brand partnerships – this time in the (relatively new) cannabis/CBD industry.

I received a cold email from a CBD company called Sugar and Kush, and I responded back out of sheer curiosity. The first email they sent stated that the sender was a “real person,” which is a huge red flag, but the thing that really roped me in was the unicorn/rainbow-type CBD product. It was so over-the-top ridiculous that I couldn’t help but be curious about what type of paid promotion they wanted to do with me.

This is the email response I received from their influencer marketing director:

Let me break down how absurd, insulting, and shady this email is... I’ll start at the top.

Influencer payments:

My Instagram influence is focused on food and wine in the Bay Area/state of California, for the most part. At 12.6K followers, I am in the micro influencer space – when you consider that some influencers have hundreds of thousands of followers, 12.6K is micro.

Nonetheless, I take pride in my Instagram content. I plan my social media posts ahead of time, I make sure to answer almost every DM and comment, I have spent a good amount of money on my photography/social media tools, I sometimes take a few hours to create the perfect flat lay photo, and I share what is important to me.

As a writer for local Sonoma County magazines and publications, I do not take any paid brand partnerships, because I don’t want to give anyone the impression that I am writing about something simply because I am receiving compensation.

To be offered $20 per post, one being a 60 second video, is insulting. Not only to me, but to other creators who have spent time producing content and nurturing relationships. It brings the entire industry down because:

A: That small amount of money means that the brand doesn’t actually take you seriously.

B: If they were actually hiring models or photographers to be a part of a campaign, it would cost thousands of dollars.  

C: Content creators take time out of their day and use tools that they have purchased to help them with their marketing. This is worth way more than $20, no matter how many followers you have.

Influencer disclosure:

This is where things get shady. The FTC is supposed to regulate marketing like this, but they don’t crack down on it very often. I mean, it’s a government-run entity; there are only so many employees and so little time.

And, to be honest, some of the terminology on the FTC website is a little vague. But they are very clear about one thing: if you are an influencer, an employee, or a client of a brand, you have to transparently disclose that information.

From my Facebook friend and fellow blogger Simply Bessy:

“Shana Bull exactly. That’s not cool but whatever, who is cracking down on these people anyway? I see celebrities all the time not disclose anything at all and it’s so obvious it’s an ad so it’s even more frustrating.”

So for Sugar and Kush to ask me to add hashtags #SugarAndKush and #Ambassador without #Ad is not necessarily illegal, but it is shady. They are purposely asking their influencers to deceive their audiences.

And, if you actually take a look at some of the people who have shared videos and pictures on their own Instagram pages, the ambassador hashtag is hidden at the bottom of their hashtags in the second comment of their post, so it is ultimately not clear that they were paid to promote this brand. They are getting called out for it, but (of course) they’re not replying.

Sugar and Kush claiming that they are on a tight budget is ridiculous, and then almost shaming me crosses another line – implying that since I don’t have over 100,000 followers, I’m not as good as them is next-level insulting (I know that’s not what she said, I think she was simply bragging that they are working with big influencers, but my first reaction was that she was implying I should consider myself lucky to be included).

Let’s talk about this CBD product:

I haven’t tried it, so I cannot talk about how it tastes or if it works. And I am the first one to say that there is a place in the cannabis world for every type of product. Even the shallow products obviously pandering to young generation Z women. I mean, it’s basically the Barefoot Wine version of CBD products – and that’s OK. I was once 21 and drinking wine coolers. My tastes have a vault. But you know what? There are some people who are 40 and still love wine coolers. That’s OK, too.

This product looks just like the Sugar Bear Hair gummies, which is also getting into trouble in the influencer space. Sugar and Kush fits within a lot of content creators’ Instagram aesthetics, but definitely not mine. My “brand” is not pastel colors and selfies...so I’m actually not sure why they reached out to me in the first place. Maybe because I’ve been talking about CBD a little bit more lately because I’m fascinated by it.

When it comes to marketing for CBD brands, legally they're not supposed to talk about any health benefits. If you take a look at their overly marketed captions on Instagram, however, almost every one of them talks about relaxation and stress reduction.

The Sugar and Kush Instagram account is just one vapid Instagram trend after another: scantily clad women promoting their product, paleo and keto references, cotton candy flavors. I wouldn't be surprised if they introduced unicorn-shaped gummies next. Like I said, there is a place for products like this...and obviously the half-naked women marketing ploy can work. But that is not the Cannabis industry, nor the influencer industry, that I wish to be a part of.

The foundation of influencer marketing is building trust and creating connections. When it comes to cannabis – or even wine – there are some guidelines that are different from the rest of the non-regulated industries. I want to provide some guidance for influencers when it comes to disclosing their relationships with brands (if you’re a brand marketer, read more information about how to create an influencer campaign).

All influencers:

Make sure to disclose that you got paid or were sent the product for free right away. It is illegal to deceive your audience into thinking that you are talking about the product solely because you like it.

If you are promoting a product that you truly believe in, it will come across in your post, and people will not necessarily care that you were partnering with the brand. Here is more info on what influencers need to disclose, directly from the FTC.

Wine influencers:

If you are promoting a wine brand, whether they paid you or they just sent you a free gift, you have to abide by the same rules of wine law. That means not posting images of anyone under 21, not promoting drunkenness, not promoting relaxation, and especially not promoting the idea that wine could make people like you more. I spent a LOT of time researching wine laws for a wine publication, watching Ken Burn’s documentary on Prohibition, and talking to someone at the California Alcoholic Beverages Control Agency (ABC).  

This article on Tied House Laws for alcohol brands is from me. Also, this article from my friend Megan from Untapped Media is GREAT.

Cannabis influencers:

When it comes to cannabis marketing (CBD- and THC-based products), right now it really is the Wild West online. A good rule of thumb some marketers follow is treating posting about cannabis similarly to posting about wine. So, with that theory, anyone saying that CBD is great for relaxation is against cannabis “laws.”

Habib Bentaleb, a cannabis lawyer based out of San Francisco, has spoken about cannabis laws at a few conferences recently, and he has even blogged about cannabis and marketing:  “Before embarking on an expensive marketing campaign, you’ll have to be certain (at least 71.6% certain) that your audience is reasonably expected to be at least twenty-one and that you don’t use any depictions or images of minors or anyone under twenty-one.” Also, no free product giveaways or advertising that has cartoons or cute animals (i.e., things that seem like they're marketed towards kids).

In an email correspondence with him, Habib also mentioned that “the FDA could send warning letters to companies that make general health-related statements. They just don't have the manpower to police the entire industry. It's a lot like speeding on the freeway – practically everyone is doing it, but only the really bad actors (or the unlucky) are getting pulled over.”

To be honest, this last statement is how I feel about both wine and cannabis marketing. Both are heavily regulated, and for good reason. They are products that are not meant for children. But many brands don't know the laws, are confused by the laws, or think that those regulating social media are simply too busy to pay attention, so they do what they want and figure they may just get their hand slapped.  

As a person on both sides – an influencer and a marketer in the wine industry, I would prefer to err on the side of caution and work with brands that encourage disclosure and an open dialogue.