Hilary Bricken
by

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.

3 responses to “Marijuana Advertising: Bigger (and Better?) Than Ever”

  1. Now the US Gov. have gone into the drug
    business…Marinol/Dronabinol is patented by our smart Gov. It’s made
    right there in North Carolina. Of course this THC drug is a Schedule
    3 and is a conflict of interest don’t ya think. Also, this Gov. says
    this plant has no medicinal value well they own the patent on
    Marinol. Our Gov. has been selling their product Marinol has been on
    the market for 10 years. Did this not make Cannabis medicinal for the
    past 10 years ? Not studied enough I bet to differ they had Marinol
    studied. They had a big study in 1974 by Nixon. Big Pharma companies
    have been doing experiments on Cannabis sine 1974 with the DEA’s
    permission. What about all the studies done in Israel Dr. Gupta saw
    and many others studies in other countries. But that is not even
    necessary because we don’t need to wait for studies becuase Millions
    upon Millions have used this plant without a single death so it’s
    safe to let this plant go. We have been too patient while they have
    lurked around pretending to care about our safety too much to let
    this food be our medicine.

  2. Marijuana being illegal is one of the
    bad unjust laws we just should not accept. Just because a cop didn’t
    shoot us cold blooded does not mean we are not being killed look at
    the Cancer and Epilepsy the vets committing suicide every day. This
    law was a lie and is a lie it should not stand. Thinking again yes
    some have been shot cold bloodily because of this unjust law. Major
    religions have used this plant throughout history it’s in the
    Christian Bible this plant is a Godsend to all and it’s being illegal
    is a sham and a fraud committed on us every single day. The only
    argument the Gov. has left is society damaged which is ridiculous
    millions smoke now and always has. Ted Turner, Richard Branson,
    Willie Nelson so many people use this plant and it has not hurt any
    other person including them. Kids is the last argument and pot is not
    worse than wine and wine is in most every home. Until this plant is
    heated it’s just food. The most nutritious food in the world. It’s
    time to take back our rights and our breakfast, lunch or dinner. When
    the law say’s we cannot grow this plant we say we can make wine at
    home this is no different and it’s less intoxicating and better for
    our body than wine.

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The Canna Law Blog™ is a forum for discussion about the practical aspects of cannabis law and how it impacts those involved in this growing industry. We will provide insight into how canna businesspeople can use the law to their advantage…

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Please be mindful that possessing, using, distributing and selling marijuana are all federal crimes and that this blog is not intended to give you any legal advice, much less lead you to believe that marijuana is legal under federal law.