Blunt talk about marijuana spots
Back in the day, the mere broadcast of a song which might have something to do with drugs could bring the Feds down hard on a station. You old-timers might remember back that far. (You young ‘uns should check out 28 FCC2d 409 and 31 FCC2d 377 if you have any questions.)
What a difference a couple of decades make! Now not only can you play songs about marijuana, but you might even be able to advertise the stuff. Is this a great country or what?
There are, of course, all sorts of catches, so read on.
Marijuana is a controlled substance and its sale or distribution is prohibited under Federal and state narcotics laws. However, last October the Department of Justice announced formal guidelines governing its enforcement policy with respect to medically-prescribed marijuana in those states where medical use of the drug is now legal. (About a dozen states have legalized medical marijuana so far.) In those grass-friendly states the DOJ has ceased prosecutions of legitimate growers and distributors of marijuana intended for medical use.
Legalizing some weed sales has, logically enough, opened up the possibilities for trying to promote such sales through advertising. And sure enough, a number of broadcasters have been asked to run spots for distributors of marijuana, including doctors’ offices and retail outlets. Unlike cigarette advertising, there is no FCC rule or policy that prohibits such advertising (although the Commission has long demonstrated a serious antipathy to drug use and distribution generally). In view of the DOJ enforcement policy, it appears that the current Administration is not likely to impose extra burdens on legitimate, state-sanctioned marijuana use – which suggests that advertising dope for such use should not cause problems (just as promotion of gambling in jurisdictions where it’s legal has long been approved).
However, anyone considering acceptance of medical marijuana ads should pay careful attention to factors such as the following:
- The distribution of marijuana for medical purposes must be permitted by state law in the area served by the station.
- Stations whose signals reach portions of states where medical marijuana has not been legalized may still be subject to Federal prosecution.
- A station accepting such ads must do a minimum of due diligence to make sure the advertiser is legitimate and not a drug trafficker masquerading as a medical dispensary.
- Advertising copy should be carefully screened to make sure it promotes use of marijuana to be dispensed under a doctor’s prescription. Local counsel should be consulted if there is any question about whether the ad describes an activity that might be considered to violate a state’s medical marijuana law.
There is risk involved in accepting medical marijuana ads even if these guidelines are followed. A mistake regarding the bona fide nature of an advertiser, or about interpretation of your state’s medical marijuana law, could result in legal trouble. A drug conviction, even for an inadvertent violation, could have serious implications at FCC license renewal time. And remember, the FCC itself has not yet addressed this question – even though the DOJ has clearly signaled a disinclination against bringing the law to bear against medical users who have their state’s blessing.
So the likelihood of being criminally prosecuted for advertising a product that is now legal (at least for medical uses) throughout your state and service area appears to be relatively small. But remember, applicable Federal anti-narcotics laws have not changed. All that’s changed is the DOJ’s enforcement policy. A violation of a state’s medical marijuana law could still have adverse legal consequences at both state and Federal levels, and ultimately at the FCC.