broadcast ads for medical marijuana

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  • The FCC released its Second Report and Order setting the annual regulatory fees that broadcasters must pay for 2024. 
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In recent weeks, we saw press reports on a recommendation from the Attorney General to loosen federal restrictions on marijuana – reclassifying it by moving it off Schedule I (an illegal controlled substance with no medical uses and a high degree of potential abuse) to Schedule III, where many other drugs, including some requiring a prescription, are listed.  No official announcement about any reclassification action has been released, and even when it is, there are apparently other administrative steps that need to occur before any re-scheduling is final.  So, there are many regulatory hurdles still to come.

While a rescheduling to Schedule III may have an impact on research and marijuana’s medical uses, broadcasters need to continue to take a very cautious approach to marijuana advertising while the details of any possible change are worked out and likely even after any re-scheduling as, even as a Schedule III drug, advertising may still be restricted under federal law.Continue Reading Don’t Start Counting Marijuana Advertising Dollars Yet – Cautions Despite Possible Changes in Its Federal Classification

Earlier this week, we covered the broadcast issues that the FCC may be facing in 2024.  But the FCC is just one of the many branches of government that regulates the activities of broadcasters.  There are numerous federal agencies, the Courts, Congress, and even state legislatures that all are active in adopting rules, making policies, or issuing decisions that can affect the business of broadcasting and the broader media industry.  What are some of the issues we can expect to see addressed in 2024 by these authorities?

For radio, there are music rights issues galore that will be considered.  Early in the year, the Copyright Royalty Board will be initiating the proceeding to set streaming royalties for webcasters (including broadcasters who stream their programming on the Internet) for 2026-2030.  These proceedings, which occur every five years, are lengthy and include extensive discovery and a trial-like hearing to determine what royalty a “willing buyer and a willing seller” would arrive at for the noninteractive use of sound recordings transmitted through internet-based platforms.  Because of the complexity of the process, the CRB starts the proceeding early in the year before the year in which the current royalty rate expires.  So, as the current rates expire at the end of 2025, parties will need to sign up to participate in the proceeding to determine 2026-2030 rates early this year, even though the proceeding is unlikely to be resolved until late 2025 (unless there is an earlier settlement)(the CRB Notice asking for petitions to participate in the proceeding is expected to be published in the Federal Register tomorrow).  Initial stages of the litigation (including the identification of witnesses, the rate proposals, the evidence supporting those proposals, and the initial discovery) will likely take place this year. Continue Reading Gazing into the Crystal Ball at Legal and Policy Issues for Broadcasters in 2024 – Part II: What to Expect from the Courts and Agencies Other than the FCC

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • A bill was introduced in the US Senate proposing to prohibit any FCC or criminal action against a broadcaster who

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Last week, the US House of Representatives passed the MORE Act which, if enacted, would take marijuana off the list of Schedule I drugs – those drugs whose possession and distribution is a federal felony, as is the use of the radio waves to promote their use.  As we have warned before (see, for instance, our article here published when an earlier version of this bill passed the House in 2020), because of the laws making the sale of marijuana a federal crime and prohibiting the use of radio waves to promote that sale, broadcast stations should think twice about any marijuana advertising, even in states where it has been legalized.  Thus, the passage of MORE Act through the House should not be taken as a sign to start running marijuana advertising on your broadcast station.

First, it is important to remember that this bill was passed only in the House of Representatives.  Without also being approved by the Senate and being signed by the President, the House’s action had no legal effect.  Because of the way that Congress works, if the bill does not pass the Senate in the current legislative session, which ends in the first few days of January 2023, the whole process must start over again – bills do not carry over from one Congressional session to another.  So, if Senate action is not forthcoming this year, a new Congress would have to start with a new bill, and a new House of Representatives and a new Senate would both have to vote to adopt the legislation.   The MORE Act passed the House with few Republican votes, so if the composition of the House changes next year, that may not bode well for this legislation if it does not pass the Senate this year.
Continue Reading House of Representatives Passes MORE Act to Remove Marijuana from Schedule I – Don’t Rush to Start Airing Pot Ads Yet

Last week, there was much written in the press about the MORE Act passing in the House of Representatives, taking actions to decriminalize marijuana under federal law.  This would include removing marijuana from Schedule I, which is the list of drugs whose use for almost all purposes is prohibited in the United States.  The passage of this bill through the House, though, should not be taken as a sign to start running marijuana advertising on your broadcast station – though there are some signs that the day on which that advertising can be run may be in sight.

First, it is important to remember that this bill passed only in the House of Representatives.  Without also being approved by the Senate and being signed by the President, the House’s action had no legal effect.  Because of the way that Congress works, if the bill does not pass the Senate in the current legislative session, which ends in the first few days of January 2021, the whole process must start over again – bills do not carry over from one Congressional session to another.  So, to become law in the new year, a new Congress would have to start with a new bill, and a new House of Representatives and a new Senate would both have to vote to adopt the legislation.
Continue Reading MORE Act Passes House – But Don’t Rush to Run Marijuana Ads on Your Broadcast Station

In recent months, there have been many calls to regulate e-cigs, and potentially to regulate the marketing of all sorts of vaping products, including a call last week by an FCC Commissioner in an op-ed article in USA Today.  As we wrote several months ago, these suggestions have been based in the fear that increased promotion of vaping products have led to an increase in tobacco use among children.  While the FDA has been taking efforts to crack down on flavored vaping products to reduce their appeal to kids, the makers of e-cigs still advertise, including on radio and TV.  And those advertisements bring us frequent questions about whether the FCC has rules about advertising these products.  So far, the FCC has had no real role in regulating these products.  In fact, one wonders if it really has any authority to take action against the advertising of e-cigs without Congressional action.

So far, all the limits on e-cig advertising have been imposed by other agencies – principally, the FDA.  The FDA requires a tag on all vaping ads, stating that these products contain nicotine, which is an addictive substance (see our articles here and here for more details about that requirement).  And these ads should not claim health benefits for vaping.  Given the FDA’s concern about children, any ads should also stay out of programming with a large audience of children.  Could the FCC itself do more?
Continue Reading A Call to Regulate E-Cig Advertising – What is the FCC’s Role in Regulating Advertising For the Vices?