You may be familiar with an Adult Verification System otherwise known as an “age gate”—that little pop-up screen that asks an online user to enter his or her birthdate in order to access web content. Age gates are most often utilized by industries that offer products, services or content that may not be suitable for minors (alcohol, for example). A business owner can use them to restrict access to a particular website, confirm authorization for credit card payments, or ensure that it is complying with industry standards.
Some social media platforms are now offering age gates to businesses who use their sites for advertising products, services or content directed at adult audiences. Basic features of age gate systems usually include checking an acknowledgment box (“I verify I am over the age of …”), entering a birthdate in a pop-up field, or, if the audience member is a part of the social media platform (for example, has a Facebook page), the system matches the account to the registered user who provided a birthdate when his account was created.
If the user does not provide age verification, he is prevented from accessing that site or from following that account on social media. Of course, a user can always provide a false birthdate, but the business has at least taken a step to ensure its audience will be limited to adults.
Twitter’s ‘Age Screening’ and the Alcohol Industry
Twitter entered the age gate game in 2012 in response to a request for it from specific alcohol brands.
In 2012, the Federal Trade Commission (FTC) required 14 major alcoholic beverage advertisers to provide information for the agency’s fourth major study on the effectiveness of voluntary industry guidelines for reducing advertising and marketing to underage audiences by beer, wine and distilled spirits manufacturers. These self-regulated initiatives are contained in guidelines promulgated by the three major alcohol industry trade associations: the Distilled Spirits Council of the United States (DISCUS), the Beer Institute (BI), and the Wine Institute (WI). The 2012 study required, for the first time, companies to provide information on Internet and digital marketing, as well as data-collection practices.
In 2014, the FTC released its report noting enhanced guidelines for digital marketing issued in mid-2011 and 2012 by at least two of the three industry trade associations: DISCUS and BI. These guidelines stated that digital marketing communications by alcoholic brands should be “placed only in media where 71.6 percent of the audience is expected to be 21+.”
The guidelines further specified how much monitoring or when age-verification should be used, determined by where the information was placed and the user's ability to access to that information. For example, the guidelines specify that if the access was made on the company website or by an ad placed on another website, the company should adhere to the guidelines stringently, including use of age gate technology. The guidelines extended the recommendation to social media.
While the guidelines did take into account user-generated content on social media (for example, a user's post to a company’s Facebook page)—in which case the burden on the company is lowered to removing any violative content—the guidelines mostly focus on steps the company has taken to ensure access is only offered on social media platforms to age-appropriate audiences.
However, this proved problematic because there was no way to determine users' ages on Twitter, as Twitter does not require users to provide their age when creating an account. Also, following a particular Twitter account is not a mutual exchange between the user and a brand. A mutual exchange occurs when both parties opt-in to the exchange or the following of each other’s accounts and updates.
For example, on Facebook, when one user requests (or opts-in) to become “a friend,” the other must accept (or opt-in). Facebook users also input their birthdates when they create their accounts.
Twitter, on the other hand, allows people to opt-in to a particular Twitter user’s updates without requiring the other party to opt-in. As a result, a Twitter user of any age would be able to follow any alcohol or other age-restricted brand or product.
In response, Twitter paired with third-party service Buddy Media to create an “Age Screening” product that could be used by alcohol brands. The service was launched in a closed-beta program only to brands that had registered for the program. In 2013, Twitter moved the age gate technology in-house to provide a new closed-beta program.
In states that have legalized the sale of marijuana, efforts are underway to adopt the advertising regulations and voluntary standards used by the alcohol industry.
What About Cannabis Businesses?
Twitter’s age gate is directly linked to advertising campaigns, indicating that only communications that could be considered advertising or promotion of a brand would likely utilize the age gate. Its age gate policy states that the feature is voluntary, free and available to a select number of Twitter’s advertising partners, while it remains in the closed beta stage.
Currently, it is only officially available to producers and marketers of distilled spirits and malt beverages, wine brands or gambling advertisers.
To use Twitter’s age gate, a company must first be a registered user of Twitter’s advertising campaigns. On its face, that excludes most cannabis businesses. Twitter’s official policy toward advertising cannabis, and cannabis-related products and services is that it is generally promoting drugs and drug paraphernalia—which is prohibited on Twitter.
Twitter makes exceptions, however, for products and services related to hemp, content involving cannabis as a theme, or news and information on cannabis or related services. Whether a particular cannabis business is eligible to advertise depends heavily on how it describes its products and services (and the images included in any advertising).
Are Age Gates Required By Regulation or Just Good Business Practice?
As Twitter itself notes, “although Twitter will be working with brands interested in age screening users, compliance with specific industry guidelines around age screening and age-based targeting is, as always, the responsibility of the brand. The solution on Twitter is consistent with standard industry practices of brands which are required to gather age information.”
It is notable that even in the alcohol industry, these guidelines are just that—guidelines. However, while brands are not legally required to follow these guidelines, according to the FTC’s 2014 report, 85.4 percent of the aggregate audience for all 14 companies’ advertising efforts consisted of persons older than 21. The FTC commended the alcohol industry for the adoption of the DISCUS and BI guidelines. It also expressed that all industry members should follow suit. Ultimately, it's a voluntary, self-regulated requirement that has become an industry standard.
Since legal cannabis is an emerging market, complicated by the patchwork of state regulations, no industrywide standard has been adopted. However, in states that have legalized marijuana sales, efforts are underway to adopt the advertising practices used by the alcohol industry.
For example, in Colorado, the Marijuana Enforcement Division Rules specify marijuana businesses must refrain from advertising where more than approximately 30 percent of the audience is reasonably expected to be under age 21. The rules also specify that marijuana businesses are restricted from advertising via mobile phones, unless they are marketing through an installed app where the device owner is 21 years or older. Pop-up advertising on the Internet is banned as well.
Washington State requires that cannabis businesses’ social media advertising refrains from appealing to viewers under age 21 and, if possible, restricts views to adults who are 21 and older.
In states that have adopted medical or compassionate-use exceptions to criminal statutes, advertising to patients is usually prohibited. If it is permitted, it should not be suggestive to minors. Vermont’s rules governing the “therapeutic use of cannabis” program state, for example, that there should be no advertising to patients, including through electronic means or social networks.
Best Practices for Cannabis Businesses
Ultimately, age gating is a best practice for any business offering products, services or content not suitable for minors, including cannabis businesses. It also can be useful in the event regulations are enacted and/or digital compliance must be illustrated.
However you decide to market your products, it’s wise to research the legal issues surrounding marketing cannabis in your state, as well as doing everything you can to make sure you’re not marketing to anyone under 21.
About the Author: Rebecca Hutton is an Attorney of Counsel to Brooke Law Group (BrookeLawGroup.com). She supports the Brooke Law Group in representing entrepreneurs, businesses, individuals and others in starting and forming their businesses, employment law, labor law, contracts, negotiation, and dispute resolution in state and federal California courts. A Loyola Law graduate, Hutton has worked in many facilities in the arts and politics, notably