Example: Publisher Advertiser Indemnity Letter
Please Be Advised: The Cannabis Media Council understands that what is acceptable or unacceptable today may not be acceptable in the future, and the council intends the example herein to be an evolving and living document. This example does not constitute legal advice; instead, all information, content, and materials are for general informational purposes only. Information may not constitute the most up-to-date legal or other information. The Cannabis Media Council makes no representation or warranty, express or implied. Your use of this document is solely at your own risk. Your use of this example does not shield you from legal liability and does not constitute a defense. You should always consult your own legal counsel before you enter into your own advertising program.
Sample: PUBLISHER ADVERTISER INDEMNITY LETTER
Sample letter to use for advertisers who wish to run advertising in print or electronic media.
To be used as a guideline.
To whom it may concern:
Publisher, its affiliates and their respective publications in all media (collectively, “Publisher”) only accept advertisements for (1) cannabis-related businesses that operate in U.S. states in which medical or recreational cannabis may be legally sold, and are fully licensed under and in compliance with such applicable state law(s), and (2) U.S. based, hemp-derived CBD manufacturers in full compliance with the 2018 Farm Bill and all applicable state and federal laws(s). The company identified below, on behalf of itself and its affiliates and each of their respective brands submitting Advertising Materials (as defined below) to the Publisher, or requesting that Publisher assist in the creation of custom content Advertising Materials (collectively, the “Advertiser”) acknowledges that cannabis remains federally unlawful under Schedule 1 of the U.S. Controlled Substances Act (CSA) and that its conduct in manufacturing and/or the offering for sale cannabis products of any kind constitutes a violation of such laws. To the extent Advertiser is promoting products containing hemp-derived CBD, Advertiser acknowledges that the FDA has not authorized the sale or marketing of food, dietary supplement, or cosmetic products containing cannabis or cannabis-derived compounds, including CBD derived from hemp. Advertiser adopts all risk associated with its advertisement of cannabis and/or CBD products and shall not hold Publisher responsible for any outcomes related to any kind of enforcement against Advertiser related to such violation of law. These guidelines may be updated from time to time based on changes in the law or Publisher’s internal guidelines.
By doing business with Publisher, the company identified below, on behalf of itself and its affiliates and each of their respective brands submitting cannabis or cannabis-related advertisements to the Publisher (collectively, “Advertiser”), acknowledges and represents, for the duration of the business relationship between the parties, that:
1. With respect to the subject-matter of the Advertising Materials:
a. For medical or recreational cannabis and cannabis products and services: Advertiser operates its cannabis business in one or more states in the United States in which medical or adult-use cannabis may be legally sold and in which a strong and effective regulatory scheme has been established to authorize the cultivation, production, distribution, and possession of medical or adult-use cannabis, Advertiser’s business complies with the laws of each state in which it operates, including any applicable registration and licensing requirements, and Advertiser is advertising products or services which Advertiser is licensed by the respective state(s) to manufacture or sell.
b. For hemp-derived CBD products: Advertiser is a hemp cultivator, processor, manufacturer, or retailer operating in compliance with the 2018 Farm Bill or has obtained its CBD/hemp from a hemp cultivator or manufacturer operating in a state or a country outside of the United States where hemp may be legally grown or manufactured. The hemp-derived CBD products offered by Advertiser and included in the Advertising Materials are not intended for ingestion by animals. Advertiser’s business complies with the laws of each state in which it operates, including any applicable registration and licensing requirements, or the CBD/hemp obtained by Advertiser complies with any applicable state’s laws, including any applicable business registration and licensing requirements. Advertiser only sells its CBD products in states where it is legal to do so and is in compliance with those states’ laws.[1]
c. For cannabis-related services that do not involve the sale or provision of medical or recreational cannabis: Advertiser is not offering or selling any cannabis, cannabis products, or identifying cannabis retailers but instead is offering information.
2. Advertiser’s business is in good standing in each state in which Advertiser operates and Advertiser is not currently the subject of any federal, state, or local regulatory enforcement action or the target of any criminal investigation. If Advertiser has been the subject of such enforcement or investigation in the past, Advertiser has disclosed this fact to Publisher. Advertiser further agrees to inform Publisher without delay of any material change to its business standing and of any change or non-compliance with regards to its license requirements and obligations in any state(s) in which Advertiser operates, including, but not limited to, the receipt of a letter of non-compliance or regulatory enforcement from any local, state, or federal agency. Advertiser further agrees to immediately inform Publisher if Advertiser becomes the subject of any regulatory enforcement by any federal agency including receipt of a warning letter from the FDA, FTC, or other agency.
3. The Advertising Materials comply with the law(s) of the state(s) in which Advertiser operates, including all requirements and restrictions the state places on cannabis- or hemp-related advertising, as well as all other general federal and state unfair and deceptive acts practices laws, and such advertisements do not include claims or language that any specific cannabis or hemp-derived CBD product, or products including these ingredients, may provide a health benefit to humans or animals.
4. Advertiser does not accept online orders for cannabis or cannabis-containing products in jurisdictions where Advertiser’s products may not be legally sold or where Advertiser’s products may not be legally sold or ordered online.
5. The content of the Advertising Materials does not appeal to children or include any child-friendly elements, coloring, designs, shapes, or themes, or any images of children or anyone who appears to be under 21 years of age. This includes use of toys, movie characters, cartoon characters, or anything designed to be attractive to anyone under 21. Advertiser will not attempt to use Publisher’s services to target advertisements at people under the age of 21.
6. Digital ads do not contain links to web pages where cannabis or cannabis-containing products may be purchased.
7. Advertising Materials do not:
a. Depict cannabis or alcohol consumption or overconsumption;
b. Offer any promotion, contest, giveaway (of cannabis or non-cannabis products), sale, special, or any other type of inducement to purchase cannabis or cannabis products;
c. Offer any products marketed for consumption by animals;
d. Contain any statement concerning a brand or product that is inconsistent with any statement on the label of the brand or product; or
e. Make any claims regarding the purported health or wellness benefits of hemp, CBD, or cannabis;
f. Closely resemble non-cannabis brands, products, or advertisements.
Advertiser further agrees that it will be solely responsible and liable for reviewing and ensuring that all aspects of Advertiser’s media campaign, including but not limited to any and all advertising or marketing materials submitted to run in Publisher print publications, on Publisher’s website and digital properties, and in other Publisher publications and outlets in any and all media, or for display or distribution at any Publisher events, as well as e-commerce/affiliate links and materials provided by Advertiser in connection with any custom content (regardless of whether such materials are combined with other materials supplied by Publisher) (collectively, the “Advertising Materials”) (i) do not infringe upon the intellectual property or privacy rights or any other rights of any person or entity, (ii) do not defame or disparage any person or entity, (iii) are adequately substantiated and not deceptive, false or misleading, (iv) do not include claims that any cannabis product or hemp-derived CBD product may provide a health benefit to humans or animals, and (iv) otherwise comply with all applicable laws, rules and regulations, including without limitation, laws, rules and regulations relating to and/or governing the Advertiser and the products being advertised, and all advertising and promotion thereof (“Laws”). Advertiser further agrees it has sought the advice of its own counsel for a review or clearance of the Advertising Materials prior to submission to Publisher and that counsel has confirmed compliance with all applicable Laws. Advertiser agrees that any review of the Advertising Materials by Publisher or Publisher’s counsel is for Publisher’s sole benefit, and any such review or requested revisions to, or other statements about, the Advertising Materials made by Publisher or its counsel (collectively, “Publisher Review”) shall not constitute legal advice to Advertiser. Advertiser expressly agrees that it shall rely solely on the legal advice of its own counsel, and that any Publisher Review has not and will not be relied upon by Advertiser, nor shall it relieve Advertiser of any obligation with respect to the Advertising Materials as set forth herein.
Advertiser shall ensure that: (i) all ads for cannabis products, including paraphernalia used for same, should include a disclaimer as follows: “Not available for sale except where permitted by applicable law”; and (ii) all ads for cannabis should include the advertiser’s state cannabis license number, where applicable. For all products, the following disclaimer must appear: “This advertisement has not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease.”
Advertiser agrees that Publisher shall not be required to take any measures to geotarget, engage in online age-verification, or limit the scope of the audience or viewers of any Advertising Materials in any manner unless specifically negotiated and agreed upon between Advertiser and Publisher in a signed writing. Unless specifically agreed, Advertiser agrees that all Advertising Materials submitted for print publication will run in the applicable print magazine’s full distribution and circulation (subscriber and newsstand) globally, including without limitation in the United States and Canada, and that all Advertising Materials submitted for digital publication will run without restriction of any kind. In those cases where Publisher has agreed in an express signed writing to geo-target or age-restrict any Advertising Materials, or to include the Advertising Materials in a limited distribution print run (all of the foregoing, collectively, “Distribution Limitations”), Advertiser acknowledges and agrees that Publisher shall make commercially reasonable efforts to do so, provided that Publisher makes no representations or warranties, and expressly disclaims, that such Distribution Limitations will be error free, complete or accurate, or that such Distribution Limitations meet the requirements of any law, rule or regulation to which Advertiser, its products or services may be subject. Advertiser acknowledges and agrees and assumes all liability and risk relating to, and waives any claims against Publisher, its affiliates and each of their respective employees, officers, directors, agents and vendors arising from or relating to any failure or effort by Publisher to engage in Distribution Limitations or to limit the scope of the audience or viewers of any advertisements in any manner.
Advertiser agrees to indemnify and hold harmless, and upon request defend, Publisher and its parents, subsidiaries and affiliates, and each of their respective officers, directors, employees and authorized agents, from and against any and all third party actions, governmental agency actions, claims, demands and inquiries and all losses, damages, liabilities, judgments, settlements, interest, awards, penalties, fines, encumbrances, deficiencies, costs or expenses related thereto, including reasonable attorneys’ fees and costs, arising from and/or related to the Advertising Materials or the products featured therein, including without limitation, any asserted violation of any law, rule or regulation relating to cannabis- or hemp-based products or services or the advertising of the same. Upon request by Publisher, Advertiser shall have the right to direct and control the defense and settlement of any claim subject to its indemnification obligations hereunder, provided that Advertiser shall not agree to any settlement without the prior written consent of Publisher.
Advertiser agrees that Publisher reserves the right to terminate any advertising subject to this agreement at any time for any reason, without notice to Advertiser. In such a case where Publisher terminates the publication or broadcast of an advertisement, Advertiser agrees it is not entitled to any refund or reimbursement of any kind and remains responsible in full for the contracted fee associated with such advertising. Advertiser is proceeding at its own risk.
This letter agreement constitutes the entire understanding of Publisher and Advertiser with respect to the subject matter hereof and supersedes any and all written or oral agreements, representation, or understandings including without limitation any insertion order between the parties. No oral or written statements or materials not specifically incorporated herein shall be of any legal force or effect. Advertiser agrees that the terms of this letter agreement are an amendment to the Publisher’s Advertising Terms and Conditions at [INSERT LINK] (the “Terms”) and in the event of a conflict between the terms of this letter agreement and the Terms, the terms of this letter agreement shall govern. No modification of this letter agreement will be effected by Publisher’s acceptance of any purchase order, shipping instruction forms or agreement to any other document containing terms and conditions at variance with or in addition to those in this letter agreement, all such varying or additional terms being deemed invalid except as reflected in a written agreement signed by Publisher’s General Counsel or Chief Executive Officer expressly identifying this letter agreement and waiving the terms hereof.
The undersigned individual signing on behalf of the Advertiser represents and warrants that he/she has the right and authority to bind the Advertiser hereto.
Sincerely,
[ADVERTISER NAME]
By: __________________________
Name:
Title:
[1] NTD: this section will need updating as states develop hemp programs and intoxicating hemp programs.