Update: Boulder Allows Dispensaries to Sell Branded T-Shirts and Other Merch

Staffers at the defunct Denver dispensary Cherry Top Farms wearing branded T-shirts.
Staffers at the defunct Denver dispensary Cherry Top Farms wearing branded T-shirts.

Update: Earlier this week, the Boulder City Council voted unanimously to allow dispensaries to sell branded merchandise, so long as clothing and other items aren't offered in children's sizes. Continue to see our preview coverage about the issue, which spotlights favoring the change espoused by Colorado NORML.

See also: DIA Banning Sales of Marijuana-Themed Socks and Flip-Flops, Entrepreneur Says

Original post, 9:50 a.m. December 16: At 5:30 p.m. tonight, the Boulder City Council will consider a pair of measures to extend the time for medical marijuana businesses to convert to recreational sales from year's end to early 2015. Additionally, two versions of the ordinances include a provision that would allow dispensaries to begin selling branded merchandise, including clothing and more -- and both Colorado's branch of NORML and the organization's executive director, Allen St. Pierre, strongly endorse such a change. Details and more below.

As outlined in the agenda packet for tonight's meeting, included in its entirety below, the main effect of ordinances 8020 and 8027 would be to extend the time for medical marijuana businesses to convert to recreational sales from December 31 to March 31, 2015. But earlier this month, the council directed staff "to prepare language striking restrictions on sales of merchandise with the name and logo of the medical or recreational marijuana businesses," the document notes.

The 2014 edition of the Boulder City Council.
The 2014 edition of the Boulder City Council.

A staff analysis section that's part of the agenda packet doesn't endorse this notion -- at least not yet. An excerpt reads in part:

The justification for eliminating the advertising limitations is that these restrictions put Boulder recreational marijuana businesses at a competitive disadvantage with similar businesses outside of Boulder. However, there was also mention that some council members do not want to allow such merchandise that is in child sizes or appeals to minors. The issue is further complicated by the state law restrictions on what a marijuana business can sell. Claims were also made that the businesses are being harmed because they cannot obtain trademarks on their logos or copyrights on advertising. Since federal law prevents trademarks or copyrights for marijuana products of advertising, this assertion had no basis in fact. Staff recommends that council consider allowing for a more thorough analysis of effect of changing the rules regarding selling of merchandise to be better able to weigh the policy considerations at issue with respect to this proposed change. Staff's recommendation is that council delay any change until the third quarter of 2015 to allow for a detailed analysis of a full year's worth of data on recreational marijuana sales and their impacts and learn of the changes to the marijuana laws at the state level that will be adopted during the 2015 legislative session.

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Countering this view is attorney Judd Golden, who stepped down as head of the Boulder ACLU earlier this year. Golden sent a letter to council members on behalf of Colorado NORML urging them to adopt version C of ordinance 8020 and version D of ordinance 8027, These variations contain amended language that reads: "No medical marijuana business shall sell, distribute, or provide, or allow the sale, distribution, or provision of, products marked with its name or logo, in child sizes, designed for the use of minors, or which is misleading, deceptive, false, or appealing to minors."

Here's an excerpt from Colorado NORML's argument:

There is no evidence that continuing the ban on the sale of logoed merchandise would, "help limit the impact of recreational marijuana on youth," as suggested by Boulder County Health. In fact, surveys show marijuana use by children is down post-legalization. Also, state law, regulations, and Boulder's current ordinances make it clear that it is a violation for marijuana businesses to advertise, "in a manner...designed to appeal to minors."

From a First Amendment and practical standpoint, Boulder restrictions are ineffective if the justification is to limit the impact on youth. For many years before and after the passage of Amendments 20 and 64, marijuana-related products and images have been available for sale in Boulder. There is widespread advertising and merchandising for legal marijuana in Colorado and the Denver metro areas.

Logoed merchandise from marijuana businesses outside Boulder can of course lawfully be worn or displayed in Boulder. It makes no sense that it is legal to walk down Pearl Street displaying logoed merchandise from other Colorado branches of Boulder marijuana businesses, but unlawful to sell the same item at a Boulder marijuana business.

From a consumer standpoint, the current advertising ban also limit personal freedoms. Consumers want to be able to identify with the goods and services they purchase. This consumerism also builds the framework that supports businesses and allows them to succeed.

Seconding this emotion is NORML executive director Allen St. Pierre, who shared his reply to Golden on the subject. In it, he suggests a disconnect between banning logo-laden dispensary merchandise but allowing it for bars and other purveyors of alcohol.

Find St. Pierre's letter below, followed by the massive agenda for tonight's meeting. The section pertaining to ordinances 8020 and 8027 begins on page 198.

Allen St. Pierre.
Allen St. Pierre.

Hello Judd,

Thanks very much for your forwarded letter to the Boulder City Council re sales of branded merchandise from local cannabis-related companies.

Can one imagine a bar, winery, brewery not being able to sell company-branded merchandise? Shirts? Mugs? Coasters? Wine glasses? In some instances, branded company merchandise can be a terrific supplement to a bar, brewery, winery, distillery's bottom line annually. Indeed, First Amendment principles are also in strong consideration.

The companies involved in cannabis commerce are not in a strong position to advocate for themselves as their self-interest, coupled with fragile political environment for these new cutting-edge businesses, logically make their interests strongly parochial.

Such is a prime example, at this nascent stage of legalization, why consumer-oriented groups like NORML -- working in concert with other like-minded organizations and companies -- are still very much needed as means to help lend a rational and thoughtful voice to the public policy making processes regarding bringing a greater degree of parity of cannabis commerce to that of other similar products such as alcohol.

There are dozens of other areas of concern that are still fertile for public policy interest work for local chapters of NORML in states where prohibition has been replaced with tax-n-regulate policies...the recent efforts to thwart cannabis commerce in Breckenridge is fresh in one's mind. Of course, at some point, elected officials in cities and states where cannabis prohibition has ended will have to also confront the want of consumers to be able to responsibly imbibe cannabis in the presence of other adults...just like alcohol consumers can...and wearing the bar's local t-shirt or hat if that is what they want to do.

;D)

Again, thanks for letting the Boulder City Council and local media know that adult consumers of cannabis, along with paying vice level taxes on cannabis are also keen to purchase cannabis-related merchandise as well...generating more taxes and publicity for the city...just as much as for the individual businesses.

Kind regards from still-in-flux-DC,

Allen

NORML

Boulder City Council Meeting Agenda: December 16, 2014

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