Newspapers should be wary of marijuana advertising

December 19, 2015

By Tonda F. Rush
Legal Standing

Q. What about running ads for marijuana shops in states where that product is now legal to sell?

A. This question arose in December when the Postal Service issued an internal directive to its employees about marijuana advertising. Although Oregon and Colorado now permit marijuana sales for recreational, not just medical use, marijuana is still a Schedule 1 controlled substance under federal law.

Usually a product or service that can be legally sold can be legally advertised. If marijuana for recreational use is legal to sell in these two states (and for medical purposes in more than 20 other states), can you reason that newspapers should be able to carry ads from marijuana shops?

Nope, says the Postal Service. It is illegal under the Controlled Substances Act to advertise a Schedule 1 drug, so even in Oregon and Colorado, the ads cannot be in a mailed newspaper.

Here is the provision:

“It shall be unlawful for any person to place in any newspaper, magazine, handbill, or other publications, any written advertisement knowing that it has the purpose of seeking or offering illegally to receive, buy, or distribute a Schedule \1\ I controlled substance. As used in this section the term "advertisement" includes, in addition to its ordinary meaning, such advertisements as those for a catalog of Schedule \1\ I controlled substances and any similar written advertisement that has the purpose of seeking or offering illegally to receive, buy, or distribute a Schedule \1\ I controlled substance. The term "advertisement" does not include material which merely advocates the use of a similar material, which advocates a position or practice, and does not attempt to propose or facilitate an actual transaction in a Schedule \1\ I controlled substance.”

OK then, how about putting the ad on the website and skipping the mail altogether?

Nope, not there either. Here is the next paragraph of that law.

“It shall be unlawful for any person to knowingly or intentionally use the Internet, or cause the Internet to be used, to advertise the sale of, or to offer to sell, distribute, or dispense, a controlled substance where such sale, distribution, or dispensing is not authorized by this subchapter or by the Controlled Substances Import and Export Act [21 U.S.C. 951 et seq.].”

What will the Postal Service do if it finds a marijuana ad in a newspaper?

Thomas Marshall, general counsel to the Postal Service, tells me postmasters are not authorized to make rulings on “mailability.” They can’t seize the mail or hold up a mailing while they have questions answered. If a mailer asks the Pricing and Classification Center for a ruling on the mailability of an ad, the PCC will tell the mailer the ad is not permitted. That question was asked by a direct mail company in the Northwest, which prompted an internal directive leading to discussion among newspapers in Oregon and Washington in December.

If USPS will not stop a mailing beforehand, what happens if an ad slips in and the newspaper is caught?

The Controlled Substances Act permits a prison sentence up to four years for violations of its advertising ban. Media lawyers would argue that the law applies to the advertisers, not to the newspaper. But we don’t hear that argument today, because federal enforcement has been largely a hands-off policy under the Obama administration.

The U.S. Department of Justice issued guidance to the states in 2013 that it would not interfere with local decisions on legalization except in eight protected areas. For example, it will enforce the federal law if attempts to sell to children are detected, or sales across state lines into areas where marijuana possession remains illegal are found. None of the eight areas have to do with advertising explicitly, but it is imaginable that advertising in a children’s publication would awaken the federal police. Or possibly even an ad in a newspaper that crosses into prohibited state territory.

Also, the 2013 guidance is good only for the tenure of the Obama administration. One or more candidates for the 2016 Presidential race have already stated their intention to reach back into the Obama term to prosecute drug laws—so the 2013 guidance may not offer any protection at all.

In sum, the Postal Service will not refuse to deliver your mail, but a postmaster could refer your issue to the US Postal Inspection Service, which in turn could turn it over to the Department of Justice for prosecution. Whether an indictment would be sought by the US attorney depends upon whether any of the 8 prohibited categories are violated. If not, no more is likely to come of the matter.

It is worth noting that the Controlled Substances Act applies to newspaper ads however distributed, not just mailed copies. The legality question came up in December as a postal issue because of internal guidance issued within USPS hit the news wires.

In states where marijuana use is legal and regulated—whether recreational or medicinal—the risk of prosecution is low. But it is not risk-free. Consulting your attorney when in doubt is advised.

To see what the USPS is telling its employees about marijuana advertising, click here.

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