Now that recreational marijuana use is legal in Ohio, can we expect to see the billboards and airwaves filled with advertising for weed? Probably not. And a recent decision from the United States Court of Appeals for the Fifth Circuit supports the case for limiting such advertising.
Currently, Ohio has strict rules about advertising for medical marijuana, and those rules apply to advertising for recreational marijuana as well. So, for example, the Ohio Administrative Code prohibits billboard advertising for marijuana. Anyone who wasn't aware of this rule implicitly realizes if they cross into Michigan, where billboard advertising is permitted. Every other billboard it seems is for a dispensary.
Other rules in Ohio prohibit advertisements placed on a radio or television broadcast. And no advertisement is permitted to use "any image bearing a resemblance to a cartoon character, fictional character whose target audience is children or youth, or pop culture icon." This includes a drawing or photograph of a marijuana leaf.
The Fifth Circuit recently ruled on the constitutionality of Mississippi's near total ban on marijuana advertising (editor's note – the Fifth Circuit insisted on spelling the word – " marihuana." I refuse to follow this odd convention). The question the Fifth Circuit addressed was whether the ban violated the First Amendment. The Court said it did not.
Commercial advertising is protected by the First Amendment. But the government has a little more leeway to regulate commercial speech than it does non-commercial speech. In short, the government may regulate commercial speech if there is a substantial governmental interest supporting the regulation and so long as the regulation is not more extensive than is necessary to serve that interest.
So, how did the Fifth Circuit apply this test to the Mississippi law? It didn't. Here's the thing – for the test to apply, the advertising must be for a lawful product. And that is what hung up the Fifth Circuit. Despite the fact that marijuana is legal in 38 of 50 states for medical use and 24 states for recreational use, since 1970, the federal Controlled Substances Act has prohibited the manufacture, distribution, dispensing, and possession of marijuana. That law additionally criminalizes the advertising of marijuana. In the Fifth Circuit's view, this made "quick work" of the case.
The plaintiff in the Fifth Circuit case – a Mississippi dispensary – argued that whether the product was illegal had to be decided based on Mississippi law, since that was the entity imposing the advertising restrictions. The Court was unmoved. In its analysis, "a state’s ability to ban commercial speech is 'concomitant' to the unlawful status of the underlying transaction. It is constitutionally irrelevant whether the state or the federal government imposed the status of illegality."
The Fifth Circuit's reasoning is likely to be persuasive as other states wrestle with the issue. But it highlights the need for Congress to look at the federal Controlled Substances Act. It makes little sense for there to be two regulatory systems out there. If Republicans truly believe in limited government and states' rights, this seems like a layup for the incoming Congress. And once that gets addressed, let's work on the Fifth Circuit's spelling.
