Monday, February 27, 2017
Commercial Marijuana Advertising and the First Amendment
Many states that have legalized the commercial sale of marijuana have also sought to restrict commercial marijuana advertising. For example, Colorado prohibits licensed retail marijuana stores from advertising on television programs unless the stores have “reliable evidence that no more than 30 percent of the audience for the program on which the Advertising is to air is reasonably expected to be under the age of 21.” Colorado imposes similar restrictions on print and internet advertising. (Colorado’s advertising restrictions can be found here, in Rules 1102-1115). Until recently, at least one medical marijuana state (Montana) had banned all commercial marijuana advertising.
State advertising restrictions are motivated primarily by concerns that the commercial marijuana industry might seek to promote marijuana consumption by minors, similar to the way that the alcohol industry once (still?) promoted underage consumption of beer. Indeed, some of Colorado’s advertising restrictions are directly modeled on advertising guidelines that various alcohol industry trade groups have voluntarily imposed on their members. See, e.g., the Beer Institute’s Advertising and Marketing Code.
But do government restrictions on commercial marijuana advertising violate the First Amendment?
The place to start is Central Hudson v. Public Services Commission, which establishes the test for government regulation of commercial speech. In relevant part, Central Hudson instructs that “[f]or commercial speech to come within [the protection of the First Amendment], it at least must concern lawful activity and not be misleading.” Any government regulation of protected speech must “directly” advance a “substantial . . . government interest”, and not be more “extensive that is necessary to serve that interest.”
Let me pose two questions to the blogosphere regarding the application of this test to commercial marijuana advertising:
- As a threshold matter, does commercial marijuana advertising concern “lawful” activity? The question is complicated by the fact that the production and sale of marijuana are “lawful activities” as a matter of state but not federal law. Indeed, the Montana state supreme court upheld that state’s (since repealed) outright ban on commercial marijuana advertising by finding that commercial marijuana speech was not entitled to any protection under the First Amendment because the federal government banned the drug (even if Montana did not). Alex Kreit has written a thoughtful piece espousing a similar position – i.e., suggesting that states have more leeway to restrict commercial marijuana advertising so long as the federal government bans production and sale of the drug. But should courts consider the federal ban when judging the constitutionality of state restrictions on commercial marijuana advertising? In other words, should a state have more leeway to restrict advertising of some activity it considers lawful just because the federal government bans the same?
- Assuming that commercial marijuana advertising is protected speech, do state restrictions like those outlined above pass the second part of the Central Hudson test? In other words, do state governments have a substantial interest in restricting such advertising, and is there any other way for states to address that interest?
I have my intuitions about how to answer these questions, but I'm not a First Amendment scholar and I'm curious how others would approach these issues.
Interesting stuff. I recall an old 9CA case involving doctors talking about medicinal marijuana as well.
Anyway, I wonder how much Central Hudson Gas & Elec. Corp. v. Public Service Comm'n is still good law with various speech friendly commercial speech cases. If it still is, how narrowly will it be applied.
There is also a basic question of prudence -- if marijuana is de facto going to be legal, I would think it is in our interest for some truthful speech be allowed, including in advertising. See, e.g., a case about alcohol content in beer that reached the Supreme Court some time back.
Posted by: Joe | Feb 27, 2017 12:12:23 PM
The Ninth Circuit case Joe mentions is Conant v. Walters. The Conant court held that physicians have a first amendment right to discuss the pros and cons of marijuana use with their patients. To reach that conclusion, the court first had to find that telling a patient “your health might improve if you use marijuana” doesn’t aid and abet the patient’s later possession of the drug (mainly because the physician doesn’t know how a patient will use the statement). I think the court’s conclusion re: aiding and abetting is questionable, but if we agree that a physician doesn’t commit a crime merely by “recommending” marijuana to a patient, then it’s easier to see how this physician speech is lawful and thus protected by the First Amendment.
As far as I'm aware, Central Hudson is still good law, but Joe's correct to point out that the doctrine is fluid and there are analogous cases that might shed some light on the second question posed above.
Posted by: Robert Mikos | Feb 27, 2017 2:32:01 PM
The place to start may be Greater New Orleans Broadcasting v. US (1999)(https://scholar.google.com/scholar_case?case=595799505930098980&hl=en&as_sdt=6&as_vis=1&oi=scholarr), where the Court unanimously declared invalid (under Central Hudson) a federal ban on advertising for private casinos, which were legal in New Orleans but illegal in neighboring Texas and Arkansas. The Court rejected the argument that the band should protect the neighboring states (where Louisiana advertising may be heard).
Posted by: Howard Wasserman | Feb 27, 2017 3:08:01 PM
Thanks Howard. Greater New Orleans is very helpful. In light of it, I'm skeptical that state advertising restrictions would pass the scrutiny required by the Central Hudson test, if a court were to get that far. But I still wonder whether the federal ban gives states some cover under the first prong of the Central Hudson test. After all, everyone in Greater New Orleans conceded that the regulated advertising concerned “lawful activities.” The Court even accepted (though begrudgingly, it seems) that the federal government had a substantial interest in “assisting States that ‘restrict gambling’ or ‘prohibit casino gambling’ within their own borders.” It just found that the restrictions the federal government imposed were poorly suited to addressing that interest.
Posted by: Robert Mikos | Feb 27, 2017 5:06:11 PM