Reefer Madness: Controversial Ad Issues

The big broadcasting issues confronting Washington policy makers range from retransmission consent and newspaper-television cross-ownership to the “performance tax” and political advertising. But the everyday issues facing broadcasters in the trenches these days are more in the area of controversial advertising. Lately, that means whether to accept advertising promoting on-line gaming, electronic e-cigarettes and, most recently, marijuana, since many states have now legalized its use.

Yes, the U.S., it seems, is going mad for reefer!

A Bit of History

Prior to 1937, hemp, or cannabis, was completely legal in the U.S., and used for durable clothing, rope, paper, plastics and textiles, and for medicinal purposes. Following the 1936 film Reefer Madness, a morality tale of “reefer addiction,” the Marijuana Tax Act of 1937 made possession or transfer of cannabis illegal throughout the United States excluding medical or industrial uses. Notably, the American Medical Association opposed the Act as a burden on physicians prescribing cannabis, retail pharmacists and medical cannabis cultivation and manufacturing. It did no good. By that time every state had already enacted laws criminalizing the possession and sale of marijuana and by the 1950s simple possession of marijuana was made a federal crime. In 1956, it was included in the Narcotics Control Act, leading to sentences of two to 10 years with a fine of up to $20,000 for simple possession.

As an aside, since the 1840s, marijuana had been used by the medical establishment as a mainstream medicine in the West. Studies in the 1840s by French doctor Jacques-Joseph Moreau found that marijuana suppressed headaches, increased appetites and aided people to sleep. By 1850, marijuana had made its way into the United States Pharmacopeia, the official public standards-setting authority for all prescription and over-the-counter medicines that listed marijuana as treatment for numerous afflictions ranging from neuralgia to gout and tonsillitis.

We now appear to be in the midst of a full scale re-evaluation of marijuana for its medicinal properties as well as its recreational use. Twenty-one states and the District of Columbia have legalized the medical use of marijuana. Colorado and Washington State have legalized its use for recreational purposes. Check your state here.

Four more states, Minnesota, Ohio, New York and Pennsylvania, have legislation pending to legalize medical marijuana and the District of Columbia is considering legalized marijuana for recreational purposes.

Predictably, growers and dealers in the local jurisdictions are seeking to advertise their products and services. As broadcasters field their requests, they want to know: Is it legal? 

The Trend for Legalization

While limited use and possession of marijuana is now permitted under state law in a little over 40% of the U.S., it is important to recognize their limitations. Severe possession limits are a part of each of those statutes. Eighteen of the 20 states require proof of residency to qualify for medical marijuana use. So far, only Oregon will accept other state permits.

Very importantly, marijuana continues to be classified as an illegal drug under the Controlled Substances Act. In a case called Raich v. Gonzales, the Supreme Court ruled the federal government can prosecute medical marijuana patients, even in states with compassionate use laws. Several medical marijuana dispensaries in California, where medicinal marijuana is legal under state law, have since been subject to drug enforcement raids. In 2010 Attorney General Holder directed federal prosecutors to back away from pursuing cases against medical marijuana patients, but nevertheless committed to “vigorously enforce” federal laws governing marijuana as a “core priority,”  Holder’s statements remind us that although medical marijuana is legal under the laws of several states, in any quantity it remains illegal under federal law.

Faced with the overwhelming trend among the states to reform marijuana laws, on Aug. 29 the Department of Justice issued a new memorandum from Deputy Attorney General James M. Cole addressed to all United States attorneys (the “Cole Memo”). The purpose was to “clarify” department policy in the light of many state laws and initiatives legalizing possession of small amounts of marijuana regulating its production, processing as sale.

The Cole Memo states that in view of the department’s limited resources, it will focus its efforts on certain drug enforcement priorities of particular importance to the federal government, “regardless of state law.”

Eight listed priorities focus on distribution to minors, trafficking in illegal drugs and other offenses that could be characterized as more serious than mere possession and use. Note that while the memo reaffirms the U.S. government’s historical position that it should focus on more “serious” drug-related offenses, it falls short of creating an actual “safe harbor” or, for that matter, any restriction on U.S. attorney discretion on whether or whom to prosecute.

The Cole Memo further emphasizes that in states allowing marijuana use, strict compliance with a specific “strong and effective” state regulatory scheme will be important in determining whether U.S. attorneys should prosecute cannabis purveyors or users. Finally, the Cole Memo requires prosecutors to review marijuana cases on a case-by-case basis, weighing all available information and evidence before concluding there has been compliance with a state scheme and whether one of the Department of Justice enforcement priorities is implicated.

What to Do?

Any reasonable analysis indicates that accepting advertising for cannabis in any form, for medicinal or recreational purposes, is a dangerous proposition. Even where state law permits its use and therefore advertising it would be considered a legal activity under state law, an extensive case-by-case analysis of each advertiser would be required before it could be concluded that their advertising is for a legal activity under the relevant state’s specific “strong and effective” regulatory scheme.

It might be noted that Google has recently announced that it will be accepting some marijuana advertising. However, media reports indicate that it will not allow ads to be linked to “cannabis” or “marijuana” search terms. Rather, searches would be triggered by terms like “chemotherapy nausea,” and limited to text ads without any images of marijuana. Finally, they will be controlled so that they will be delivered only in states that allow medicinal marijuana.

Some may think the CSA applies only to the advertiser and not to the medium that publishes its message. However, when dealing with criminal law, special considerations come into the analysis. For example, 18 U.S.C. §2 provides that whoever aids or abets the commission of a crime is punishable as a principal. The DOJ Criminal Resources Manual states that acts of the perpetrator become the acts of the aider and abettor and the latter can be charged with having done the acts even when the principal is not tried, convicted or even identified.

Therefore, while it is extremely rare for a publisher to be tried for the crime of an author or advertiser, the situation surrounding marijuana use might prove to be so high-profile and controversial that an aggressive U.S. attorney might consider prosecuting the advertising medium. Such a case would certainly involve First Amendment issues as well as other complicated defenses; however, victory might come only after a long and expensive legal experience.

Bottom Line

Marijuana advertising might be acceptable and entirely legal under local state law. However, marijuana possession, sale or use is still a violation of the Controlled Substances Act. Therefore, advertising for it is advertising for a violation of federal law, and current DOJ policy is to prosecute, “regardless of state law,” unless it qualifies for the “forbearance” described in the Cole Memo.

A reasoned analysis would conclude that accepting such advertising presents substantial risk to the station and could only be allowed following the detailed analysis required to be assured that the activity advertised complies with the Cole Memo priorities and a “strong and effective” state regulatory scheme.

In sum, the rules have not been tested and further guidance from the Justice Department is important before broadcasters begin to accept this advertising.

Gregg Skall is a member of the Washington law firm Womble Carlyle Sandridge & Rice PLLC. He is the immediate past Telecommunications Practice Group leader. Skall represents broadcasters and other parties in their regulatory dealings before the FCC in their commercial business dealings. He frequently speaks on FCC broadcasting and political broadcasting rules and represents broadcaster associations before the FCC and the Federal Election Commission. He may be reached at 202-857-4441 or by email at [email protected].

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.