I was recently interviewed by KPLU regarding a new series of billboards and banners around Seattle paid for by an I-502 production and processing company. This interview came on the heels of the historic full-page Leafly ad in the New York Times.
Without a doubt, marijuana advertising is taking off and many marijuana entrepreneurs and ancillary businesses are looking to put a new, fresh face on marijuana through high-end, professional branding. But because marijuana is still prohibited under federal law, and because many view marijuana usage unfavorably (especially use by those under 21), it is important that we talk about first amendment rights and their connection to marijuana advertising.
Not all speech is protected speech. In fact, advertising is commercial speech that can be strictly regulated by the government. In Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, the U.S. Supreme Court set out a four-part test to determine whether government regulation of advertising speech is valid: (1) Does the advertisement involve lawful activity? (2) Does the government have a substantial interest in the content of the ad? (3) Does regulating the advertisement advance a substantial government interest? (4) Is the regulation the least restrictive means of advancing the substantial government interest?
Note the first prong of that test asks whether the advertisement is for lawful activity. Technically, advertisements for illegal activity are not protected speech and can be altogether eliminated by government authorities. Advertisements for marijuana consumption, production, retailing, cultivation, and even tourism could all be considered illegal activity as far as the feds are concerned. In fact, back in October 2011, the feds threatened to pursue medical marijuana advertisers for encouraging federally illegal activity, though as far as we know nothing ever came from these federal ultimatums. Despite previous inaction by the feds, marijuana advertisers should at least be mindful that their commercial speech probably is not protected and may even be viewed as illegal activity by some government entities with the power to enforce the laws.
Almost all marijuana states have laws or regulations that address how and where and what marijuana businesses can advertise. But just because you can advertise, does not mean that you should. Even if you seek to portray a stolid corporate, professional image when singing your product’s praises, you should realize that many will still condemn you and your ads. A recent GrassIsNotGreener.com ad in the New York Times (GrassIsNotGreener.com is an affiliate of the non-profit organization Project SAM, or Smart Approaches to Marijuana, an anti-marijuana policy group) proves this point. That ad shows the face of a friendly-looking hippie on top of a Wall Street power suit, and its content essentially alleges that, though marijuana may have a “flower child” image stemming (pun intended) from its past, corporate America has now taken over and the emerging marijuana industry will be creating the same evils previously caused by Big Pharma, Big Tobacco, and the alcohol industry.
All marijuana entrepreneurs need to be on alert regarding the imaging they are conveying and the repercussions their marketing may entail. ‘Cause a reputation is a terrible thing to waste.