By Jason Liu, second-year student at the University of Washington School of Law.
As cannabis businesses become prevalent, the public is likely to see more cannabis advertisements. Recently in Colorado, following the bankruptcy of the naming-rights holder of Mile High Stadium, a cannabis business, O.penVAPE, is expressing interest in becoming the next naming-rights owner. If this goes through, one of the most prominent football stadiums in the U.S. would advertise a cannabis business. However, there continues to be a conflict between legalized state systems and federal law, where cannabis is still illegal. In light of this conflict, what are states doing regarding cannabis advertising?
Currently, there is growing concern in several states whether constitutional rights are being violated for cannabis marketing that is federally illegal.
In Maine’s November ballot initiative to legalize cannabis, there is a provision that requires retailers to treat magazines such as “High Times” as age restricted material behind the counter. These magazine would be placed alongside adult magazines.
Prior in Colorado, a similar visibility restricting law on cannabis publications was passed as well. In response, cannabis publication companies filed suits claiming violations of rights to freedom of speech. In response, CO state regulators issued an emergency rule not enforcing the law, while a federal judge ruled the provision was unconstitutional. In that case, free speech rights were viewed as especially important.
There is a delicate balance between first amendment rights, business advertising, and advertising to those legally able to purchase cannabis. Primarily, it is the fear of advertising to children that likely drives the new laws. Since the Cole Memo, many states have written in their laws to prevent the sale to children. In Maine, there is the Regulate Marijuana like Alcohol Coalition, which wishes to treat cannabis marketing content similar to alcohol company advertisement. Their key goal is to prevent the ads from looking attractive to minors.
These new age-content restrictions may be helpful for states to meet the Cole Memo expectations of not selling cannabis to minors, but they do not have any online provisions. Much marketing is digitally based, and protecting minors in the internet realm may be out of the reach for states. For example, there has been controversy over cannabis-related Facebook pages and Instagram accounts suspended due to advertising.
Overall, there is a growing policy question on how much states should let cannabis businesses openly market. This answer is unclear, and will likely be dependent on local perceptions in the various state laws. As the state-federal conflict continues, states will continue to grapple with these questions.