An open letter to the cop trying to bust us for peddling weed to kids
P.O. Box 17765 Portland, ME 04112
Vernon “Vern” Malloch
Deputy Director of Operations
Maine Office of Cannabis Policy
162 State House Station
Augusta, ME 04333
Dear Vern,
Hey, man! It’s Busby, from The Bollard. I hope this open letter exposing your office’s gross negligence finds you well.
It’s been awhile since we last connected — about five years, back when you were the “acting” police chief down here in Portland and I called to get comment for my story about Steve Mardigan.
You remember Mardigan, the bookie crime boss who operated with impunity here for decades. He was a sneaky rascal, wasn’t he, Vern? Always driving around town in his flashy cars, buying blocks’ worth of property up and down Forest Ave. with illegal gambling cash right under our noses! Heck, you spent 35 years on the force, oversaw patrol and investigative operations, and even you couldn’t catch him despite the fact regulars of every neighborhood bar in town knew who he was, what he was doing, and would’ve given you his number if you’d asked nicely!
Thank God the F.B.I. finally stepped in and Stevie was able to get the help he needed for his gambling addiction. He only spent a few months behind bars — they got halfway houses for compulsive gamblers now, Vern — and the feds let him keep his car collection and a bunch of his real estate. I hear he’s doing great these days, repurchasing properties on Forest that the feds seized, buying a posh new home on Back Cove right by the one the feds also took. If I see him and he doesn’t shoot me on the spot for exposing his criminal career in this magazine, I’ll tell him you said hi.
So, Vern, here’s why I’m writing to you today. You’re now in charge of operations at the Maine Office of Cannabis Policy, and part of the OCP’s mission is to prevent recreational cannabis businesses and dispensaries from marketing their products and medicines to kids and adults aged 18, 19 and 20.
We get that, Vern — no prob. No ads or labels featuring cartoon characters who smoke (like Joe Camel, or Popeye) or seem stoned (Shaggy, Scooby, Garfield, Joe Biden). No pictures of attractive teens merrily ripping bong hits or vaping anything. It’s a regulation written to prevent a thought crime no one has motive to commit (why spend money marketing to customers you can’t have?), but it mollified nanny-state lawmakers — like the ones now pushing Flavored Tobacco Prohibition to save the children — and hey, as a trade-off for legalizing all this awesome weed years ago, we can live with it!
Here’s the problem. Last December your office issued a Notice of Administrative Action against Foliage, a recreational marijuana shop near the Jetport in South Portland, for the ad they ran in our September issue. Seems someone submitted a complaint about the ad using the handy narc button atop your website — ain’t it great when the public does the policing for you, Vern?
According to the Notice of Action signed by Director of Compliance Michael Field, a former Bath cop and police chief, that someone is “Mr. James Berry … a Physician” [sic] — don’t need to use upper-case for upper-class job titles, Vern — who “was previously the President of the Northern New England Society of Addiction Medicine.”
This leading medical specialist noticed the ad promoted Foliage’s “back to school blowout bash” on Sept. 8 and a “15% college discount all September with valid student ID” — text that so alarmed this drug doc that he felt compelled to alert state authorities and prod you to take punitive legal action. After all, as your Director of Compliance wrote, this loose talk of a “back to school” party and college students with valid IDs appeared in “a free publication that is distributed near the campus of Southern Maine Community College.”
Vern, I second the opinion of that esteemed man of medicine, whose deep understanding of human psychology and addictive behaviors led him to this conclusion. Ads in The Bollard do indeed exert an exceptionally strong influence over people of all ages, often compelling them to march, zombielike, directly into our clients’ beautiful shops and friendly restaurants, even if they must break laws (or munch on a local or two) to do so. You know what’s really a crime here? That a local business can get a custom designed, full-color ad in The Bollard guaranteed to reach tens of thousands of active people with spending money to spare for as little as $120 per month. Talk about a steal, Vern!
Here’s where the good doctor and I disagree. The Bollard is not distributed anywhere near SMCC.
As you know, Vern, per state law, no publication containing ads for legal cannabis businesses or medicines can by circulated at or within 1,000 feet of any “school” — which by the state’s definition includes all our public and private colleges, universities, trade schools and maritime academies — lest such marketing entice the minority of college students who are still minors (only about a third of the student body at SMCC and USM are under 21), and who have not taken the cheap and easy step of getting a med card, to risk arrest by attempting to buy pot at an “adult-use” shop using falsified government documents and/or a clever disguise (e.g., phony mustache, granny glasses, clean and pressed clothing).
Gotta confess something here, Vern: Ididn’t know that was the law until this Foliage thing came to my attention this January, and I was more than a little appalled to learn of this blanket ban on the free press across all institutions of higher learning — you know, given that stuff about campuses being spaces for the free exchange of ideas and whatnot.
Luckily, I haven’t been regularly distributing The Bollard on any campus for years because — get this, Vern — most young adults don’t read print media. It wasn’t worth the effort to schlep a bundle of Bollards to a student center every month only to return a month later with the new ones and have to carry most of last month’s back to the delivery Prius. I’ve always done almost all our distribution myself, and it pains me a little to pick up more than one leftover copy anywhere, so I quit the college scene before your office even existed.
Surveys and research conducted worldwide since the dawn of the Internet Age prove beyond any reasonable doubt that youth do not read print media in significant numbers. The near-total devastation of local newspapers and national magazines reflects the bleak fact that most adults won’t smudge their fingers with ink anymore, either. (Perhaps you’ve been wondering who’s been stealing Sports Illustrated from your mailbox lately — another case solved!)
So it ain’t just The Bollard, Vern. It’s that, mostly due to changes in media-consumption habits wrought by the Internet, smart phones and social media, we’re one of the few magazines left standing for you to pick on.
Now back to the matter at hand. The only two places one might expect to find The Bollard within a few football fields’ distance of SMCC are Spring Point Tavern and the Mexican-food joint Casita Corazon. The Bollard is distributed at neither place. The Mill Creek Hannaford, which is referenced in the citation and does have our magazine in the free-publications rack beyond the registers, is obviously not within 1,000 feet of SMCC. Not even close.
So the investigator you had on this case, identified in the notice only as FI Goodale, really blew this one, Vern. Or fudged it on purpose, stretching basic facts way too far, perhaps just to satisfy a bitchy Physician. Being his boss, you might wanna check and see if Goodale’s sloppy investigative work and/or dishonesty are tainting other cases. I can narc him out using the “File a Complaint” widget on your website if that’s more convenient for you.
Look, Vern, this SMCC misunderstanding is easy to clarify and dismiss. Cops make stupid mistakes and lie all the time. But the more I consider how your office handled this matter, the more shocked I am by the terrible job you’re all doing, especially since my fellow Mainers and I are paying you sweet salaries with benefits to screw everything up while we struggle out here in the free market to afford rent and health insurance.
Let’s follow the timeline, Vern. Your office got the complaint from Mr. Berry on Sept. 8, about a week after our September issue hit the streets, and Field Investigator Goodale called Foliage owner Scott Lever on the morning of Sept. 14. According to the violation notice, Goodale “advised” Scott that “the article [sic; it’s an ad, Vern, not a news story] appears to cater to college students” because it references the “back to school” party and college discount, as Mr. Berry pointed out in his complaint.
Goodale also noted that the ad did not include the shop’s state license number, as required by law, nor the mandatory fine-print disclaimer that recreational cannabis is for adults age 21 and over. Scott acknowledged that oversight, and that’s my bad, too, Vern. We designed that ad for Foliage, and as the editor and publisher here, I should have caught the omission before the ad went to press. (Another confession: I didn’t know at the time that this fine-print junk was mandatory, and generally discourage clients from including ad copy that’s obvious or meaningless to readers.)
During the call that morning, Goodale asked Scott if we’d given him “any information about the demographic of the readership of this paper.” Scott e-mailed me about this shortly after the call and I sent him a lengthy reply that same morning describing the demographics of our readership, as well as how we know what we know about Bollard readers. Scott shared that information with your office, as you requested.
Reading the law, I see what Goodale was getting at. Cannabis businesses can’t use media with a “high likelihood” of “reaching” minors with their ad message, and must take “reasonable steps” to ensure that doesn’t happen by “using marketing information from the vendor [a local magazine, in our case] or employing age verification techniques commonly used in internet advertising to avoid reaching persons under the age of 21.”
That last bit’s a hoot, eh, Vern! Like those pop-ups you encounter on breweries’ homepages that ask whether you’re at least 21 years old and deny access to the site if you’re drunk (or infantile) enough to fat-finger “no”? We put one of those on the cover this month just to show you we’re willing to play this dumb little game, too.
Anyway, having taken the reasonable step of receiving this marketing information from us detailing why it’s highly unlikely their ad would reach many minors, Foliage ran another ad in last December’s issue promoting their attractive new location near the Maine Mall. They had no reason to believe advertising their business in our magazine was a crime. After all, one of Scott’s partners in Foliage is Scott Reed, who was part of all our communications about their ads.
Scott Reed started advertising with us almost five years ago, Vern, when he was operating the Curaleaf dispensary in Auburn. Many other cannabis companies, both “adult-use” and medical, have run ads with us ever since, in pretty much every issue, often as full pages prominently placed on the back cover, without a peep from your office to me or any of them.
Then Foliage gets your Notice of Administrative Action, dated Dec. 1, detailing three separate charges stemming from their September ad, each imposing a fine of $1,000.
One for the missing disclaimer and license number. (Whoops — yeah, that happened. But a grand for a harmless oversight, a first “offense,” rather than, say, a friendly reminder, or even a stern warning? Pretty dickish, but whatever, Vern. Workaday Mainers have grown bitterly resigned to shakedowns like this from petty public officials like you. Still, that doesn’t make this egregious fine any less bullshit.)
Another charge for the “back to school” and “college student” ad copy. (Debatable, but that’s basically bullshit too; we’ll get to that in a minute, Vern.)
And a third charge just for running the ad in The Bollard.
Yes, Vern, your office has taken the official position that any cannabis ads in our magazine — or any other free local publication, apparently — are illegal and subject to huge fines based entirely on our free and widespread circulation. Here’s what your office wrote in the Notice of Action:
“The Bollard is distributed to the coastal, midcoast and central Maine area with 16,500 copies, including grocery stores, libraries, and restaurants. It also delivers to the [sic] Hannaford Supermarket in South Portland [there are two Hannafords in SoPo, Vern; one’s by the Maine Mall, another hotbed of underage activity], along with 24 other Hannaford Supermarkets in Maine. All of these locations are easily accessible [my emphasis] by persons under the age of 21. This is in violation of Adult Use Cannabis Rule, 18-691, C.M.R. Ch. 1, §5.2.C (3).”
That’s the rule about taking “reasonable steps” to avoid advertising through media with a “high likelihood” of “reaching” minors. There’s nothing in the rule’s language about how easy it may be for kids to access an ad, and for good reason — the politicians who wrote it know damn well that providing access to something is not the same as actually providing something, which is why they keep crowing about increasing our access to health care while most Mainers can’t actually see a doctor or dentist or therapist due to high demand and high costs.
Having stretched the facts of this case beyond the breaking point (re: SMCC), your office is now torturing the English language to make the presence of our magazine in public places tantamount to the ads inside it reaching the people in those places with a marketing message. If I told prospective advertisers their ad will reach 750,000 people because that’s about how many wander in and out of all the places we leave copies every month, they’d think I was high!
Since we began print publication in 2007, The Bollard has never conducted a formal reader survey — the results of which wouldn’t be of much use to us anyway, and I was raised that it’s rude to ask strangers what their age or income or gender or education level is, weren’t you, Vern?
Such surveys tell you more about people who voluntarily answer intrusive questions for free or accept spam calls from marketing firms (lonesome weirdos and showoffs, basically) than they do about a print publication’s overall readership. I’ve long had a much more accurate and reliable way to collect that demographic information: 17 years of experience seeing and interacting with our readers in person, by phone, and via e-mail, social media and our subscription page on Patreon. Precious few of those countless thousands of eyewitness observations of readers and personal interactions with them involved anyone under 21.
Who are our readers? Based on simple observation, one can readily surmise that they’re people who shop at supermarkets, food co-ops, specialty markets and corner stores, and who like to go to the bars, restaurants, libraries, bakeries and cafes where our magazine is found. Many hundreds of copies are picked up at the Back Cove Hannaford every month, but only a handful ever disappeared from USM’s (relatively nearby) campus center before I stopped dropping them off last decade. Applying your keen police-detective skills of deduction, Vern, what does that clue tell you?
TikTok, Instagram, Hadlock Field, The Expo, Nickelodeon, Q97.9 (Portland’s #1 Hit Music Station) — those are obviously platforms, places, channels and stations that have a high likelihood of reaching a lot of young people with their marketing messages. Furthermore, radio, TV and public-display ads reach youth passively, when they’re just riding in a car, sitting on the couch or at a ball game. To be reached by the message of an ad in The Bollard, one must actively seek out a copy, pick it up, then open it or turn it over to see any ads and thereby be subjected to their message and promptly zombified.
What in tarnation is going on here, Vern? In pursuit of your office’s mission to identify and prevent pot marketing to kids, did everyone just forget to look at any of the few remaining print publications in Maine? Just space it? That’s next-level laziness, boss. Do you guys drug-test each other?
I won’t rat them out to you, but a bunch of the free papers and mags around here have a cannabis ad or two, and one free glossy in the racks in all about herb. Heck, I picked up one of those free cartoon maps of downtown Portland for tourists the other day and saw more than one marijuana ad — a cartoon map, Vern! Kids love cartoon maps!
The cannabis industry has been a godsend to Maine’s ruined post-industrial economy, turning vacant and run-down retail spaces statewide into gorgeous shops and healing oases. The influx of ad revenue from this new, booming industry has been a boon to The Bollard and our state’s small, struggling community papers.
But, Vern, if your charge based on our circulation sticks, wouldn’t that set a legal precedent by which any cannabis ad in a free, widely distributed publication is illegal?
When rumors about your months-long investigation of Foliage’s ad circulated in the cannabis community last fall, most of our advertisers in that industry pulled their ads indefinitely, worried your office might pounce on them next for some unforeseeable violation. The unpredictable, unresponsive and unprofessional way you’re enforcing the rules has already cost us thousands of dollars in lost ad revenue (in the dead of winter, no less), compelling me to cut content and pages from this magazine.
I tried to reassure these clients last year that cannabis ads have long been legal to run in our publication for all the obvious reasons I just shared with you and our readers. But then in January I finally saw the charge against Foliage and, sure enough, your office is asserting in a legal notice that any cannabis ad in The Bollard is a crime endangering minors punishable by a $1,000 fine.
We want to work with ya, Vern! We want to understand and follow the rules. But your office is as inscrutable and prone to senseless destruction as an angry god.
How is it possible that, having determined last fall that cannabis ads in The Bollard are illegal and harmful to youth, no one in your office thought to contact me and ask us to stop publishing and circulating them throughout the most populous parts of the state?
How long could we’ve run full-page ads on the back cover urging kids to eat Tide PODS until someone, anyone in state government gave us a call or shot off a quick e-mail? Would you guys wait around for years until a doctor complained about a Tide POD ad in a free magazine he found in the same city as a college where almost all the students, faculty, staff and visitors on campus can legally buy Tide PODS? Or would you wait for the F.B.I. to swoop in again and take care of another problem festering right in front of your face, Vern?
In January, I sent two detailed e-mails about print cannabis ads to your office’s Director of Media & Stakeholder Relations, Alexis Soucy, requesting some clarity regarding your office’s enforcement policies. Vern, hate to tell ya, boss — more bad news. Seems Director Alexis is fucking off on the job, too. No response whatsoever, and The Bollard is both the media and a stakeholder in these matters. Why won’t she relate to us? She looks slightly baked in her photo on your website. Want me to use the narc button to get someone to test Alexis’ pee-pee for ya?
Let’s talk this out, Vern! Like, when you were a teenage wannabe cop, did the phrase “back to school” sound cool or appealing to you? Is “school” a “product” that’s “commonly associated with persons under 21,” and therefore forbidden by law to appear in a cannabis ad? Pictures and references of and to “toys” are explicitly verboten, so are Christmas or “Holiday Season” promotions illegal? That would suck, because Foliage’s December ad mentioned “holiday bonanzas” and “stocking stuffers galore.” Oy, stockings, Vern, stuffed with goodies! Good Christian children love stockings! Thank God Foliage remembered to include the age disclaimer that month.
What about promotions mentioning times of year kids actually look forward to, like Halloween, or Easter, or summer? Are those all criminal now? You know who gets excited about “back to school” time, Vern? Grown-ass adult parents. Ruski’s, the great neighborhood bar in Portland’s West End, ran an ad in that same September issue that read: “Put the kids on the bus and come party with us!” You get that one, right?
I’ve been in touch with Foliage’s attorney in this matter, former state lawmaker and Republican legislative leader Josh Tardy. Josh said his client’s willing to concede the fine-print oversight, but the other two charges are part of ongoing settlement negotiations with the Attorney General’s Office.
Meanwhile, a current state legislator, Rep. David Boyer, has gathered upwards of a thousand signatures on a petition to have your boss, OCP Director John Hudak, fired for “unfairly and unjustly executing state laws,” including inconsistent and egregious enforcement of the rules, which this case demonstrates in spades.
“OCP has gone completely rogue,” Boyer wrote on social media last month. “Making up the law as they go, preying on caregivers and businesses that don’t know the law and/or [are] too intimidated to push back.”
Vern, you know who I am and you know The Bollard. Did you really think we’d be intimidated into silence by this crap? This magazine exists to speak truth to power and defend people like us against people like you.
Also, I gotta say, it’s pretty offensive to see the State of Maine crack down on a local business for allegedly endangering youth with ad copy, given all the deep, systemic, longstanding and ongoing problems and failures in damn near every aspect of Augusta’s child protection responsibilities — from support and services for disabled children, mentally ill, neglected and abused kids (and those at risk of more abuse and neglect), to those in foster care and locked inside your miserable children’s prison in South Portland.
So we’ve been running cannabis ads as usual from the clients that remain, trying to stay within the crazy contours of your office’s twisted logic, but folks in the industry are still nervous to run print ads anywhere in light of your action against Foliage.
It looks like you might be the acting director there soon if Director Hudak gets the boot he so richly deserves. This time, maybe do more than just act the part of a boss, Vern. You’re overseeing a field investigator and a director of compliance making wild charges without evidence and expanding the scope of the law to fit their faulty logic and lies. You’re paying a communications director who won’t communicate. If weed ads in free papers are, as the OCP now claims, illegal, your entire office has been asleep at the wheel since it was created.
It’d be a big help to me and every other publisher left in Maine if you’d take a sec to make it clear that cannabis marketing in free print media not read by youth is legal. In return, Vern, we promise we’ll do our part to keep the fine print in those ads and keep Shag and Scoob and all those other cartoon dopes out.
Resurgam!
Chris Busby
Editor & Publisher, The Bollard
editor@thebollard.com
(207) 252-8211
