Proposition 19: The Aftermath

"Should My Station Run Medicinal Marijuana Ads?"

The heavy push to legalize marijuana in California, known as Proposition 19, the "Regulate, Control and Tax Cannabis Act of 2010," was defeated on the November 2nd, 2010 California statewide ballot. Had it been approved, many marijuana-related activities in California would have become legal under California law, regulated by local governments and subject to local government marijuana-related fees and taxes. The potential advertising opportunities were enormous and many legal dealers were ready to go with a blitz on media -- including broadcasting.

The issue is not only of interest to California broadcasters. This year there were marijuana initiatives on the ballot in Arizona, Oregon and South Dakota as well as 24 local towns and counties, although most dealt with medical marijuana and taxing authority. In fact, some of the measures passed. For example, the city of Nederland, Colorado, which is in Boulder County, passed the Nederland Marijuana Decriminalization measure, which decriminalized the possession of marijuana by people over the age of 21.

But, for California, at least for now, the NAYS had it with 53.5% of the popular vote. So, where does that leave broadcasters? The questions are already coming:

• With the defeat of Proposition 19, can I still run ads for medical marijuana since California has legalized marijuana use by prescription for medical purposes?
• What should I consider before I run the ad?
• If I choose to run them, what are my obligations to ensure the business is adhering to California law? Would a clause in the sales contract protect me?
• Do the regulations regarding cigarettes play any role?
• If the air staff reads the copy, are they protected?
• Is there particular ad copy I should avoid?

These questions are understandable, considering that medicinal cannabis has been made legal in California and in seven other states: Alaska, Colorado, Hawaii, Maine, Nevada, Oregon and Washington. Remember, however, that federal drug policy continues to ban its use for any purpose. In 2001, Supreme Court ruled unanimously that the federal drug law that classifies marijuana as an illegal drug still stands. The Supreme Court ruled in 2005 in Raich v. Gonzales that the federal government can prosecute medical marijuana patients, even in states with compassionate use laws, and several medical marijuana dispensaries in California have since been subject to Drug Enforcement Administration raids. Look it up at:

http://en.wikipedia.org/wiki/Gonzales_v._Raich

In October, the Sacramento Bee reported that Attorney General Eric Holder committed the federal government to "vigorously enforce" federal laws governing marijuana as a "core priority" even if Proposition 19 were to pass. While proponents of Proposition 19 said Holder was "posturing," and would not devote resources to enforcement against low-level marijuana offenses." Whether Proposition 19 passed or not, and even though regulated medical marijuana is legal under the laws of several states, it is still illegal under federal law.

http://www.sacbee.com/2010/10/15/3107491/feds-say-they-will-enforce-pot.html

Indeed, it is noteworthy that in late 2009, Attorney General Holder directed federal prosecutors to back away from pursuing cases against medical marijuana patients. See Washington Post, October 20, 2009.

So, while it may be acceptable advertising be for a legal substance under state law, it is still illegal under federal law. This is important because it is under federal law that broadcasters are licensed to operate their stations. While the certification required of broadcasters under Section 5301 of the Anti-Drug Abuse Act of 1988 relates to offenders and traffickers, an inventive prosecution could find willful advertising of a controlled substance to be a distribution violation. That conviction, in turn, could require an adverse answer on an FCC form and a denial of federal benefits, including eligibility for an FCC license. On the brighter side, a colleague at the bar has told me that he has had client licensees convicted of drug offenses, but they were not denied the federal benefit of keeping their broadcasting license.

Some stations were taking medical marijuana ads before Proposition 19 and many want to continue that practice. This is somewhat understandable given that it's legal according to state law. Moreover, unlike cigarettes, little cigars and smokeless tobacco, there is no specific federal law banning ads for medical marijuana. Indeed, Section 326 of the Communications Act guarantees the free speech of broadcasters and their content cannot be censored.

A conversation with FCC staff confirms that the Commission has never voiced a policy on the matter. It cannot be confirmed, however, whether there has ever been a complaint filed with the FCC over medical marijuana advertising and, and if so, whether it is under active consideration. That can sometimes be "interpreted" to mean that a complaint has been filed, it's being given the usual confidential treatment and that it may be under active consideration.

So the answers to all these questions are: There is no good answer. No broadcaster has been prosecuted, sanctioned, reprimanded or even challenged for running medical marijuana ads for lawful distributors where that activity is legal under state law. Yet, there is no guarantee. It is still unlawful under federal law and there is only the slimmest assurance, with no guarantee, that federal prosecutors will continue to forbear prosecution. If challenged, there is no FCC policy or precedent to support advertising the sale, and therefore the distribution, of an otherwise illegal substance under federal law.

Any broadcaster who considers such advertising must make an evaluation whether the reward is worth the risk. After all, a lawyer is, of course, trained to tell you "don't violate the law." If you do take the advertising, however, at least make sure that your advertiser is lawfully licensed and its product is legal under state law. You might ask for certification, or a copy of a state license. Bottom line: it might still be best to wait for a statement or ruling from the FCC. If there is a complaint under consideration at the FCC, the commission may provide guidance through it soon.

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.