marijuana advertising

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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 personal marijuana use becomes decriminalized in the states of Washington and Colorado, we once again repeat our warning to broadcasters who may be looking to pot sales as a new source of advertising revenue – remember that the Federal government still thinks that the drug is illegal. The US Attorney’s Office in Seattle has reportedly issued a statement reminding residents in Washington State of that fact, and told Washingtonians that the Department of Justice plans to enforce Federal law on all Federal properties in the state. How does this affect broadcasters? 

Broadcasters are Federal licensees. Thus, there still is a concern that advertising for an activity that is considered a felony under Federal law might present problems if a license renewal is challenged or a complaint is filed.  It is Federal law, of course, that governs the issuance and renewal of FCC licenses. No FCC official has been willing to say that advertising medical marijuana is permissible (and, as we wrote last year, a US attorney in California threatened to prosecute media outlets advertising medical marijuana clinics and to possibly seize property used for such advertising). As Washington state officials discuss how to license stores to sell pot under its new laws, some broadcasters may eye these stores, once authorized, as a potential new source of advertising revenue.  Especially with license renewal now underway for radio stations in Colorado, and soon coming up for TV stations in Colorado and for broadcasters in Washington, now is probably not the time to press the limits of advertising a product with such an ambiguous legal status. Continue Reading Legalized Marijuana – Why Broadcasters Should be Wary

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…