The Department of Justice may not be directly targeting marijuana advertising in its new dictate to U.S. attorneys around the country. But it may have the effect of sending the ad category up in smoke as media outlets—including federally-licensed radio and television stations—opt not to take the risk and accept cannabis-related ad dollars.
California became the largest state to date to allow the sale of marijuana for recreational use. Maine and Massachusetts are expected to join the list in the coming months. Twenty-nine states and the District of Columbia now have laws broadly legalizing marijuana in some form. But in Washington, D.C. Attorney General Jeff Sessions said the government was returning to a “rule of law” as he issued a memo directing federal prosecutors to enforce all the laws related to marijuana activities. It reversed an Obama administration policy that gave U.S. attorneys greater leeway, including overlooking such crimes in states that have legalized pot sales. Sessions said that “undermines the rule of law” and hampered efforts to “disrupt criminal organizations, tackle the growing drug crisis, and thwart violent crime across our country.”
Harold Snow, an attorney with Garvey Schubert Barer’s cannabis law team, said for now enforcement is a “free-for-all” that will be dependent upon the decision of the temporary U.S. attorney in each district. “The best offense remains a good defense,” he advised clients in the legal pot business in a blog post.
Even as more states allow the sale of medical and recreational marijuana, broadcast attorneys say it is unlikely the Dept. of Justice or the Federal Communications Commission will give explicit clearance to radio and TV stations to air pot commercials in 2018. Erwin Krasnow, co-chair of Garvey Schubert Barer’s communications and media practice, thinks the FCC will continue to duck the question, similar to how it avoided ruling on whether Las Vegas and Atlantic City casino ads were permitted. And Krasnow says it’s entirely possible Sessions could even turn up the heat on stations that have tested the pot ad waters. “There is a better than even chance that the Justice Department will reverse the policy under Obama of not enforcing the federal drug laws that characterize marijuana as a banned narcotic drug,” Krasnow said. He points out Sessions was a vocal opponent of marijuana legalization while he served in the Senate and during his time as a U.S. attorney in Alabama.
There have been some efforts to ease federal laws regarding marijuana. Rep. Jared Polis (D-CO) introduced the Regulate Marijuana Like Alcohol Act (H.R. 1841) last year which would help clear the way for stations to air pot-related commercials without threat of losing their license. But his bill has attracted only 17 cosponsors and House GOP leadership has so far refused to hold any hearings on his proposal.
Polis on Thursday accused the Trump administration of “waging war” on legal marijuana and states’ rights. “The Trump Administration needs to back off, and allow marijuana to be treated like alcohol under the law,” Polis said. He’s asked President Trump to overrule Sessions, pointing out in Colorado alone legal pot has created 23,000 jobs and generated $200 million in tax revenue for the state.
A survey conducted last fall by Marijuana Business Daily found that many dispensaries, growers and distributors still aren’t entirely sure how they should market themselves. While radio stations are advised against airing commercials for such businesses, the rules aren’t nearly as clear on whether they should offer ad space on station websites or social media. Both mediums are seen as among the most useful by pot entrepreneurs. Station live events also offer another option with many pot businesses saying event sponsorships are their best bet at the moment.