The latest legal battleground between federal and state laws regarding the legal use of cannabis is now being waged on television.
Specifically, it concerns an ad for a cannabis vaporizer, Neos, which was scheduled to air on KMGH, an ABC affiliate in Denver. Yet while Colorado has legalized marijuana for medical and recreation use, ABC got cold feet because it found itself in unchartered legal territory regarding the legality of airing a “federally illegal” substance on federal airwaves. Broadcast TV and radio fall under the jurisdiction of the Federal Communications Commission (FCC).
A spokeswoman for E.W. Scripps Company, which owns the station, said while the station endorses “free speech and open expression,” their management had “concerns about the lack of clarity around federal regulations that govern broadcast involving such ads.”
While the ad makes no mention of marijuana and does not show anyone smoking pot, the product itself was considered sensitize enough to have the ad pulled.
And because broadcasting is regulated by the FCC, this area is vague since the agency has not made any decisions on this topic. According to David D. Oxenford, partner with Wilkinson Barker Knauer, in Washington DC, “the FCC has never made a pronouncement about what they will do if they get a complaint about a station running an ad for any marijuana product. And they have not endorsed the DOJ principles applied to the banking industry. So the Federal license under which broadcasters operate really has made stations still very cautious about advertising what remains under Federal law an illegal product.”
State vs. Federal Laws
At the state level, advertising regulations regarding marijuana focus mostly on restrictions that apply to appealing to children or visual ads that are within 1,000 feet of a school, playground, recreation center or facility, child care center, public park, library, or game arcade.
The State of Washington has specified a number of advertising related issues on their site, including the use of mascots, logos and scantily clad models to promote cannabis products. But the issue of advertising on TV and radio is open to question, because those media “carry across state lines as well as places where children can see or hear.” The Washington State Liquor and Cannabis Board cautioned its in-state cannabis licensees to “consult with their attorney and media-buyer or other advertising sales representative to ensure cannabis/related advertisements are permissible.”
“Television and radio, of course, carry across state lines as well as places where children can see or hear. TV and radio are also regulated by the Federal Communications Commission. Licensees should consult with their attorney and media-buyer or other advertising sales representative to ensure cannabis/related advertisements are permissible,” according to the Washington State Liquor and Cannabis Board.
In California, a cannabis advocacy group warned in 2011 that Federal prosecutors “are preparing to target newspapers, radio stations and other media outlets that advertise medical marijuana dispensaries in California, another escalation in the Obama administration’s newly invigorated war against the state’s pot industry.”
At the time, U.S. Attorney Laura Duffy said “I’m not just seeing print advertising, I’m actually hearing radio and seeing TV advertising. It’s gone mainstream. Not only is it inappropriate – one has to wonder what kind of message we’re sending to our children – it’s against the law.”
William G. Panzer, an Oakland attorney and NORML board member who specializes in marijuana defense cases, said publishers may have a reason to worry about advertising because Federal law singles out anyone who “places” an illegal ad in a newspaper or publication. Nevertheless, Panzer said he is not aware of a single appellate case dealing with this section of the law.
“Technically, if I’m running the newspaper and somebody gives me money and says, ‘Here’s the ad,’ I’m the one who is physically putting the ad in my newspaper,” he said. “I think this could be brought against the actual newspaper. Certainly, it’s arguable, but the statute is not entirely clear on that.”
Co-Operative Federalism and Marijuana
In an academic paper, Panzer and other attorneys said “the struggle over marijuana regulation is one of the most important federalism conflicts in a generation.”
Due to the vague interpretation of Federal laws as they relate to conflicting state laws, as evidenced in this TV ad situation, the paper’s authors said the issue has far-reaching implications. For instance, “banks, attorneys, insurance companies, and potential investors concerned about breaking federal law are reluctant to provide investment capital, legal advice, or numerous other basic professional services necessary for businesses to function and navigate complex state and local regulations.”
This article is also on Cannafundr.com