NNA seeks clarification on marijuana advertising

February 25, 2016

WASHINGTON—The National Newspaper Association sent support letters this month to several members of Congress whose proposed legislation is intended to resolve ambiguities in federal law that could lead to criminal prosecution for marijuana advertising.

Sens. Ron Wyden, D-OR, Jeff Merkley, D-OR, and Patty Murray, D-WA, have introduced S. 2504. Reps. Earl Blumenauer, D-OR, Suzanne Bonamici, D-OR, and Jared Huffman, D-CA, introduced HR 4467. The bills, entitled the “Marijuana Advertising in Legal States Act of 2016,” would amend the Controlled Substances Act to decriminalize advertising of marijuana products in local publications.

Neither bill addresses advertising across state lines, which has created concern for NNA members in marijuana-legal states. NNA’s letter to the congressional delegations asked them to address incidental distribution of advertising across state lines, as well.

The issue arose in December when the U.S. Postal Service issued guidance to a Portland, OR, advertising mailer saying that it considered marijuana advertising to be a violation of the Controlled Substances Act. As states have decriminalized marijuana production, use and sales, both for medical and recreational purposes, the status of various activities in those states is complicated by the fact that marijuana remains a Schedule 1 drug under federal law.

Although the U.S. Justice Department has said it will not prosecute in marijuana-legal states as a rule, it has set aside eight possible areas of exception, including the marketing of marijuana across state lines. Threat of up to four years in prison remains for advertising considered in violation of federal law.

Because of the remaining ambiguity, NNA’s guidance to its members has been that publishing marijuana ads in marijuana-legal states continues to carry some risk, primarily because of mailed newspapers that might cross state lines.

“NNA’s position in this matter isn’t to be considered an endorsement regarding controlled substances because we have no policy on that. Instead, our concern is about protecting First Amendment rights. We certainly care about the right to advertise products and services that are legal,” said NNA President Chip Hutcheson, publisher of The Times Leader in Princeton, KY. “We find ourselves in a situation similar to that of 20 years ago when states began to legalize various types of lotteries, but the federal law still made it illegal to mail a lottery ad. Regardless of your feelings about either of these activities, there is an important First Amendment principle involved. It took us a quarter of a century to get the lottery problem fixed. I hope this one does not take so long.”

NNA General Counsel Tonda Rush said NNA believed some local experts in marijuana-legal states considered the advertising legal so long as it was not in the mail.

“The law bans advertising of the substance, regardless of a publication’s form of distribution. The current policy of the Justice Department is to forego prosecution in states with legal, but regulated marijuana sales, production and use. For newspapers distributed solely within those marijuana-legal states, the risk is low—so long as this administration maintains its policy. For mailed newspapers, the possibility remains that copies going outside the state could create a problem,” she said. “The solution is to clarify the federal law. We appreciate the efforts of the bill sponsors to decriminalize this advertising.”

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