The tenuous legal status of marijuana advertising on broadcast stations just got a little more tenuous as a Federal prosecutor in Southern California has reportedly indicated an intent to prosecute radio and TV stations, as well as newspapers and magazines, that advertise medical marijuana clinics. As we have written before, advertising such clinics was always a legal grey area, as marijuana use and possession is still a Federal felony, even though many states have passed laws to decriminalize the use of medical marijuana. While the Federal Department of Justice had indicated that marijuana prosecutions were a low priority for prosecution, as the number of medical marijuana clinics have mushroomed in many states, and the controls exercised over them by state authorities have been lax, some Federal prosecutors have seemingly taken action on their own (as we warned was possible in a prior article on medical marijuana advertising). The prosecutor in Southern California has indicated an interest in going after property owners who lease space to clinics, and now seemingly has expanded her interest into going after media outlets who advertise for such clinics.
Whether or not these prosecutions will be successful on their own may be subject to debate, but broadcasters, as Federal licensees, need to be particularly careful in their actions. There is rumored to be at least one complaint pending at the FCC against a broadcaster who ran medical marijuana ads. As an agency of the Federal government, whose Justice Department has said that pot is not a legal drug, the FCC would be hard-pressed to say that it is alright for a station to advertise for a marijuana clinic. With license renewals now pending or about to be filed by all broadcast stations, the opportunities for more objections, and sanctions based on any such complaint, are many. So, once again, we caution restraint when a broadcast station is offered the opportunity to make a few dollars from a clinics ads. The dollars you make may be far overshadowed by the dollars you spend defending a legal action – whether it be before the FCC or before a Federal court. So think twice!