Have you heard of the "Yelp" of cannabis? If not, here it is: Weedmaps. Weedmaps is a consumer-facing digital platform that allows businesses—including those without a license to conduct cannabis business—to advertise regarding their products, services and location.

The Controversy

Weedmaps enables licensed and unlicensed cannabis retailers to advertise. When businesses with cannabis licenses advertise, California law strictly requires inclusion of the applicable license number. For unlicensed businesses, the situation is less clear: the applicable statutes at least imply that only licensed businesses can advertise cannabis, but they stop short of expressly saying so.

Nevertheless, the Bureau of Cannabis Control ("BCC") takes issue with the advertising taking place on Weedmaps.

The First Hit

On February 16, 2018, Lori Ajax, head of the BCC, addressed a letter to Weedmaps stating that the advertisement of unlicensed cannabis businesses is prohibited. The letter demanded that Weedmaps cease allowing unlicensed cannabis businesses to use its platform. It also flatly accused Weedmaps of "aiding and abetting in violations of state cannabis laws" and noted that criminal and administrative penalties would result.

Ms. Ajax's strong words find support in at least two specific statutes: one making it unlawful for non-licensees to engage in commercial cannabis activity, and one making it unlawful to aid in such unlawful activity.

The Rebuttal

In response to Ms. Ajax, Weedmaps denied any violation. Weedmaps argued that state laws governing licensed cannabis businesses do not restrict the conduct of unlicensed businesses, which—the argument goes—may continue to operate as cannabis collectives under a law set to expire on January 9, 2019. Even if Weedmaps is incorrect, however, it may nonetheless have  the same shield from liability that services like Yelp, YouTube, Instagram, Facebook, and similar services enjoy: immunity under the Communications Decency Act ("CDA").

Under the CDA, the operator of an "interactive computer service" is exempted from liability for user-generated content. Weedmaps argued that the CDA preempts any liability under California law for the content posted by cannabis retailers.

Does the CDA Protect Weedmaps?

On the one hand, Weedmaps' hands-off approach makes sense: if it actively edited and curated content posted to its service, it would risk losing its immunity under the CDA. But this sets up Weedmaps for a showdown with state officials (BCC or otherwise).

If state officials take action against Weedmaps, courts will have plenty of precedent under the CDA to draw on. While the CDA obviously applies in many cases dealing with liability for advertisements or for false statements by users, it can be less clear where there is other alleged illegality. For example:

  • a website on which users advertised rooms available for rent was accused of violating housing discrimination laws (held NOT to be immune under the CDA because the operator designed the registration process deemed discriminatory);
  • an operator offering sale of personal telephone records (no immunity under CDA because the operator's conduct involved it in content development).

As the above cases demonstrate, the CDA's application to a specific situation may ultimately depend on the specific circumstances. With respect to Weedmaps, the key questions are (i) whether Weedmaps took more than a passive role in the posting of content that arguably violated California law, and (ii) whether Weedmaps specifically intended to aid and abet in such violations. These questions may remain open until resolved by a court.

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