Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
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.
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As more and more states revise their laws to decriminalize or legalize marijuana use (for medical and recreational purposes), and more and more cannabis businesses in those states begin operations, broadcasters have been looking to provide their advertising services to these new companies. But, as we’ve written before (see, for instance, our articles here and here) , marijuana is still illegal under federal law, as is the use of the radio airwaves to aide in its distribution. Because broadcasters are federal licensees, there is a heightened concern that those federal licenses could be jeopardized if broadcasters start accepting such advertising. In the last few weeks, however, there have been some legislative moves on Capitol Hill proposing to remove some of those concerns – but all such efforts have a way to go before broadcasters should consider changing their approach to such ads.
The bill that would seemingly have the potential to lift those restrictions is the Cannabis Administration and Opportunity Act, a draft bill that would remove marijuana from Schedule I, which is the list of drugs that are prohibited for all purposes under federal law (see draft text here and summaries here and here). While Senate Majority Leader Schumer had indicated that this bill might be considered by the Senate soon, there are many questions as to whether there are sufficient votes to pass the measure, whether there would be enough time to get House approval before the end of the Congressional term, and even whether the President would agree to sign the legislation if passed. Looking at the text, you realize that it is not a simple piece of legislation, as it would change many aspects of government policy to accommodate the proposed change in status of marijuana under federal law. Even if it were to become law, its effect on the advertising of marijuana may not be immediate.
Continue Reading Looking at Legislative Proposals that Would Allow Broadcasters to Accept Marijuana Advertising
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
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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
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
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Just before Christmas, the Federal Trade Commission issued consent decrees with six companies resolving proceedings alleging that their marketing of CBD products was deceptive. The consent decrees included monetary penalties as high as $80,000 and compliance plans to ensure that the named companies would not engage in future marketing of unproven health benefits of CBD products. The FTC issued a press release on the consent decrees (links to the decrees and related documents can be found on the same webpage as the press release).
Some of the health claims that the FTC found problematic were very specific, suggesting that CBD could aid in the treatment of specific diseases and medical conditions. Other claims found to be improper included more general claims that CBD was effective for “pain relief” and that the products are safe for all users. As noted in the FTC documents, only proven health claims for CBD can be included in marketing material – and so far, the proven health benefits have been limited to those provided by specific FDA-approved anti-seizure medications. While these decrees were with companies selling CBD products, rather than media companies that ran their ads, as we have noted before, broadcasters and other media companies should be alert to advertising messages that exceed permissible guidelines. While the FDA has promised further guidance on the sale and marketing of CBD products, action has likely been stalled by the agency’s concentration on pandemic-related issues. …
Continue Reading More FTC Consent Decrees Emphasize Prohibitions on Advertising of Unproven Health Benefits of CBD Products
Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
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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
Perhaps some of the most controversial areas in broadcast advertising are those surrounding the advertising of cannabis products. While many states claim to have legalized marijuana, either for medical or recreational purposes, the Federal government still considers its possession and distribution a felony, and has specific laws that criminalize the use of radio frequencies, the Internet, and publications to promote its use. At the same time, the Federal government has recently decriminalized the possession of various hemp-based products with less than .3% THC (the psychoactive ingredient in marijuana) in the 2018 Farm Act. This has led to an explosion in the sale of CBD products – even though the production of such products is, for the most part, to only be conducted after either the adoption of state laws approved by the US Department of Agriculture or under Federal rules that the USDA is supposed to approve – none of which has happened yet. With all these issues outstanding, I was recently asked to talk about the advertising issues surrounding these products before a continuing legal education seminar sponsored by the New York State Bar Association. The slides from my presentation are available here.
As we have advised broadcasters before, because they are Federal licensees, and marijuana is still a federally prohibited substance, there is substantial risk in running any advertising for products supposedly “legal” in the state in which they are being used. These ads are particularly of concern during the license renewal cycle that begins next month, as objections from anti-marijuana activists could put this issue directly before the FCC. Even though states may have adopted rules governing advertising for these products, the federal law still poses great risks for broadcast licensees – just as it does for other federally-regulated entities. That is one of the reasons that federally-chartered and insured banks have stayed away from taking deposits from marijuana-related businesses (a bill is presently pending in Congress to allow banks to take deposits, but its prospects are uncertain).
Continue Reading Looking at “Legal” Marijuana and CBD Advertising – A Presentation on the Issues
The developments surrounding the regulation of cannabis products, and the impact of that regulation on the ability of broadcasters and other media companies to run ads for these products, continue on an almost daily basis. Of course, the developments don’t all point in a single direction. As described below, at the same time as the FDA schedules a hearing to look at cannabis products and the rules that should apply to them, the FTC and FDA together have written warning letters to CBD marketers advising them to stay away from making specific health claims about their products and to avoid promoting edible products. What does this mean for media companies that have been approached to advertise these products?
We very recently wrote about the murky state of the law on CBD advertising (mentioning our continuing concerns about marijuana advertising even in states where it has been “legalized”). In that article, we warned that broadcasters should be particularly concerned about selling advertising that markets CBD products to be ingested, or advertising which makes unsupported health claims. In a joint action announced last week, the FTC and the FDA wrote letters to three sellers of CBD products, warning those companies that their marketing raised legal issues. In these letters, the FTC expressed concern that the marketing contained health claims that could not be substantiated, and the FDA was concerned about the marketing of supplements and other CDB products to be taken orally that had not been approved by the FDA as either foods or medicines. At least one of the letters cited a “salve” that presumably was not to be ingested, so the concern there seemed to be solely the specific health claims made for the product. These letters reinforce the concerns that we expressed about advertising that contains specific health claims or which deals with products to be taken by mouth (either as dietary supplements, medicines or in other foods) – so stations should be especially wary of such ads. …
Continue Reading FDA Schedules Hearing on Cannabis; FTC and FDA Send Cease and Desist Letters to Sellers of CBD Products – What is the Effect on Advertising?
