The Trump administration recently announced that it was taking steps to legalize some marijuana use under federal law.  In a Press Release from the Department of Justice, much was made of the relaxation of the marijuana rules – and many headlines trumpeted the action as if all marijuana use that has been “legalized” by state governments was now legal under federal law.  But a close reading of the accompanying Order released by the Department of Justice and the Drug Enforcement Administration reveals that the actions have only moved medical marijuana legalized in any state from Schedule I (those drugs with no approved uses that are not permitted to be sold or distributed in almost any circumstance), to Schedule III (drugs that have approved uses and can be distributed under rules set out by the FDA).  Non-medical marijuana, so-called “recreational marijuana” approved in many states, remains on Schedule I.  We have written many times (see, for instance, our articles here and here) about concerns with advertising marijuana on a federally-licensed broadcast station when marijuana was on Schedule I and its sale, possession and marketing, including broadcast and other advertising, constituted a felony under federal law even when “legal” under state law.  The recent action to legalize state-approved medical marijuana may, over time, lead to legal advertising, but it appears that there are still hurdles that remain.

Before looking at the steps that appear to be needed before legal advertising of marijuana is possible, there are a couple of things that readers should keep in mind.  First, we need to emphasize that the Trump administration’s actions affect only FDA-approved marijuana products (of which there are very few currently) and medical marijuana that is distributed and sold subject to a state medical marijuana license.  Recreational marijuana remains on Schedule I with no approved medical uses, and with advertising and distribution prohibited outside of some very limited, federally approved testing.  So, all of the concerns about advertising recreational marijuana continue – and are perhaps amplified by the decision to retain recreational marijuana on Schedule I.

Second, moving medical marijuana to Schedule III does not remove all government oversight.  It simply recognizes that there may be medical uses of the drug that should be allowed, subject to federal rules established by the FDA and other government agencies.  The rules for Schedule III drugs are more restrictive, as we will discuss below, than those that apply to hemp-based CBD products, which were taken off all government drug schedules, not simply moved to a less restrictive category.  And, note that even CBD is not totally outside of government regulation, as the FDA must also approve the use of any additive, including CBD, in any product that can be ingested – see our article here.   While the FDA was supposed to issues rules as to what ingestible CBD products could be sold, as we noted here, it threw up its hands and asked Congress for guidance as to how it should approve such uses when, using its regular approval process, it has not been able to conclude that ingestible CBD poses no harm to consumers.  We also note that Congress recently expanded restrictions even on CBD so that, as of November 2026, the distribution of such products with more than .3% THC of any kind will be prohibited (in the past, CBD must have come from a specific version of the intoxicating chemical compound Delta-9 THC to be illegal – beginning in November 2026, all versions of THC will need to be considered in determining if the CBD product exceeds the maximum THC limits). 

Third, we need to note that we are media lawyers, not ones who regularly practice before the FDA, and we don’t claim to be experts in pharmaceutical legal issues.  Take our views here are our understanding of the law – and we are more than willing to revise the concerns that we express here if there are others expert in the field who can provide more accurate information.  As always, our views on legal subjects expressed in this blog are only a general review of the issues we discuss and should not be relied upon as legal advice.  Before taking any action in any area, consult your own attorneys to be sure that your circumstances are ones where, should you take action, you will not have any legal concerns.

With those considerations in mind, our view is that the rescheduling of medical marijuana to Schedule III is a move in the right direction to potential paths to legal marijuana advertising, but hurdles still remain.  First, under the new Order, medical marijuana can only be legally distributed and sold by state-licensed marijuana dispensaries that have successfully registered with the federal government.  While the Order sets up an expedited process for approval of such providers who already have been approved by state authorities, there still is this federal process that must be completed.  This process involves the payment of fees, and there are federal paperwork obligations imposed on registered companies.  The Order also notes a few hurdles under international treaties that must be overcome before marijuana can legally be distributed.  One appears to be that the federal government must legally own the marijuana that is being sold – so a process is set up for the government to be the nominal owner of the inventory of distributors and retailers.  So, even though this process is to be expedited, it appears that it will take some time for this paperwork to be processed.  It is also unclear how the registration process will deal with dual licensed dispensaries that hold a license to sell both medical marijuana and recreational marijuana in states that allow both types of marijuana to be sold.  Will the federal government accept registrations for businesses that, in addition to selling what is now becoming a legal product, sell a product that is still on Schedule I whose distribution and sale is a federal felony? 

Perhaps the bigger impediment is that, once distributors are federally registered, FDA requirements set out an approval process for advertising for any controlled substance (any drug on the drug schedules, including those on Schedule III) before that advertising is rolled out to the public.  The advertising for Schedule III drugs needs to provide accurate information about the approved medical benefits of any drug – and  ads may not suggest so-called “off-label” uses of those drugs.  As specific medical uses of marijuana have not been approved by the FDA (and no specific medical uses appear to be identified in the Order), it will be interesting to see what kind of advertising will meet FDA requirements.  We note that there are many categories of Schedule III drugs that you don’t usually hear advertised on broadcast stations (e.g., ketamine, barbiturates, and anabolic steroids, among other drugs) – so the rescheduling does not immediately mean that advertising will be easy to craft.  In addition, advertising must identify common side effects – and again it is unclear what side effects will need to be disclosed in any advertising.  The Order, for instance, indicates that marijuana can lead to psychological and even some degree of physical dependence – and can lead to withdrawal symptoms when use is discontinued.  Will disclosures like these be required in advertising?  We will need to see how this process develops. 

Advertising was not discussed in the Order.  While it is possible that the FDA could, in a departure from its treatment of other Schedule III drugs, defer to state advertising restrictions on medical marijuana, which in some states are very detailed.  This would be consistent with the approval of the distributors of medical marijuana, where the federal government is deferring to the states to ensure the security of the marijuana and the process for the prescriptions necessary for its sale.  But the treatment of advertising is unclear.  The Department of Justice is set to start a hearing on June 29 to discuss implementation of the move of medical marijuana to Schedule III (see the announcement here).  The issues surrounding this change in federal law and its ramifications will be addressed in that hearing.  We hope that advertising is one of the issues that will be discussed.  So, while the move to Schedule III signals that medical marijuana is closer to being a legal product that can be advertised on the airwaves, it appears that some hurdles remain.  Watch for more clarification in the coming months.