broadcast ads for medical marijuana

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Last week’s letter from the FDA detailing its position that there should be no change in marijuana being classified as a Schedule I drug under Federal law reinforces the fact that, under Federal law, the drug is still illegal – no matter what certain states may do to legalize or decriminalize its use. As the FDA’s decision emphasizes that the sale and distribution of the drug is still not permitted under Federal law, we thought that we would rerun the advice that we gave to broadcasters – Federal licensees – about running advertising for marijuana. As we said in February when we first ran this article, advertising for marijuana is still a concern.  Here is what we said in February:

Broadcasters, like other federally regulated industries, continue to be leery about advertising for marijuana, even in states where cannabis dispensaries have been legalized for medical or even recreational use.  This week, the NY Times ran an article about companies trying to provide ways for dispensaries to use electronic payment systems, as federally regulated banks and credit card companies often refuse to deal with these businesses.  This is despite guidance given by the Department of Justice to banks about how to handle funds coming from such organizations.  Where the federal regulator (the FCC) has provided no advice whatsoever, broadcasters as regulated entities need to be very restrained in their desires to run ads for these dispensaries that appear to be legal under state laws.
Continue Reading FDA Continues to Schedule Marijuana as a Schedule I Drug – Doing Nothing to Clarify the Still Murky State of Broadcast Advertising

Broadcasters, like other federally regulated industries, continue to be leery about advertising for marijuana, even in states where cannabis dispensaries have been legalized for medical or even recreational use.  This week, the NY Times ran an article about companies trying to provide ways for dispensaries to use electronic payment systems, as federally regulated banks and credit card companies often refuse to deal with these businesses.  This is despite guidance given by the Department of Justice to banks about how to handle funds coming from such organizations.  Where the federal regulator (the FCC) has provided no advice whatsoever, broadcasters as regulated entities need to be very restrained in their desires to run ads for these dispensaries that appear to be legal under state laws.

Broadcasters are of course Federal licensees, and marijuana is still a controlled substance, illegal for sale to the public under Federal law.  While the current administration in Washington has said that enforcing marijuana laws against those who comply with state law is not an enforcement priority, it gave that advice provided a cannabis business observes very strict guidelines.  Strict Federal laws against any sale of marijuana remain on the books, and any search of the DOJ website provides numerous examples of legal actions brought against companies and individuals that don’t fit within those guidelines.  Plus, all it takes is a change in enforcement priorities by the Federal government and even dispensaries that are legal under state law can be closed by Federal actions.  And even if the priorities don’t change, the Department of Justice suggestions to Federal prosecutors don’t stop individual prosecutors from taking actions, especially if the cannabis-related business is found to have violated some other law or if it is acting outside of the strict limits that the DOJ set out in suggesting prosecutorial restraint.  Promoting a business that is not legal under Federal law is dangerous. 
Continue Reading The Murky State of Rules on Broadcast Advertising of Marijuana Products in States Which Have Legalized its Sale or Use

As medical marijuana has become legalized or decriminalized in many states, broadcasters have looked at advertising for the services of clinics and dispensaries as a potential new revenue source. As some community newspapers and other local media have begun to advertise dispensaries in states where medical marijuana is legal, we’ve been asked many times whether broadcasters can start to run such ads as well. Many radio and TV stations have even been approached by the operators of these clinics, seeking to run advertising schedules. Should broadcasters accept such ads? We urge caution.

Even though many states have decriminalized medical marijuana, possession and distribution of marijuana is still a Federal crime.  And broadcasters, unlike most other local media outlets, operate with Federal licenses. While the current US Attorney General has said that he will not criminally prosecute medical marijuana cases, the prohibition against marijuana remains on the books.  A careful reading of the Attorney General’s directive on medical marijuana shows that the Department of Justice has not said that medical marijuana is a legal substance, but only that, as a matter of prosecutorial priorities, the DOJ will not use its resources to target dispensaries and clinics operating under the color of state laws.  So, while this Attorney General may not direct his Department to prosecute medical marijuana users or distributors, the possession of marijuana remains a Federal crime, and the Attorney General’s memo makes clear that state laws cannot change this conclusion.  Thus, there may be some zealous local Federal prosecutor who decides to enforce the law on his or her own. Or, perhaps of more concern to the broadcaster, is the fact that there may be some local citizen in an area served by a radio or television station that runs such an ad who complains about the content of the ad to the FCC. In fact, we understand that there are already such complaints pending at the FCC. Continue Reading Advertising Medical Marijuana on Broadcast Stations – Is It Legal, What Will the FCC Think?