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:

1. 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 Indeed, the Montana state supreme court upheld that state’s (since repealed) outright ban on commercial marijuana advertising by finding that commercial marijuana speech was not entitled to any protection under the First Amendment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?
2. 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.