Marijuana advertisement regulation is no free speech fight
Updated: Mar 15, 2019
Note: Originally published in the May 2016 issue of the Washington Park Profile.
As ever, debate on the presence and regulation of marijuana in Colorado society smolders on. Within Colorado, complaints have arisen over odors, public consumption and intoxication, numbers of retailers per a given area, etc. And, there is tension of course between our state and others which have not legalized the gange: read up on Nebraska’s, Kansas’ and Wyoming’s fight against cross-border trafficking by Googling “At Colorado’s borders, a dividing line over marijuana” for a Washington Post story on the issue. Then, there’s the U.S. government's perspective…
Returning to our own sandlot, add now to the list renewed concern over pot shop advertisements, specifically said advertisements which appear in media and which may be seen by minors. Colorado House Bill 16-1363 took aim at those ads, and is a bill “for an act concerning rule-making authority for medical marijuana advertising directed at underage persons.”
Seems straightforward: pot ads could be seen by minors, minors can’t smoke pot, so regulate the ads. No so fast. According to Denver Westword, LLC, owner and publisher of Westword, and their law firm Levine Sullivan Koch & Schultz, LLP, regulation of said ads is a constitutional violation of commercial free speech. From a 2013 letter written by the firm to Barbara J. Brohl, Executive Director Colorado Department of Revenue, and Jordan Wellington, then Chair of the Labeling, Packaging, Product Safety and Marketing Working Group Marijuana Enforcement Division Colorado Department of Revenue:
“Because the proposed Rules would interfere with licensees’ ability to publish advertisements in Westword, or other such print publications, whose readership is comprised both of adults and those below the age of 21, they would undeniably violate the freedom of speech guaranteed by both the federal and state constitutions.”
To make a case against regulation, the letter cites several national legal precedents pertaining to alcohol and tobacco. But based on the federal legal climate, the laws cited might result in this being a case of apples and oranges.
In an April 13 decision, the Colorado House Finance Committee voted in favor of the bill despite said concerns over violations of commercial free speech. According to a story published April 13 on the Colorado Freedom of Information Coalition website, a suit brought by Colorado Press Association, Westword, High Times and Pulp magazine of Pueblo in Federal court over the restrictions was denied: there’s no Federal legal standing to challenge the rules. State legality of a controlled substance does not supersede Federal law.
So, what’s really at stake here? Money.
According to the Pew Research Center, daily newspaper ad revenue has plummeted from a high of almost $50 billion in 2006 to roughly $20 billion in 2014. While the weeklies and monthlies—like Westword and, yes, The Profile—have fared better, for any paper, pot ad revenue could be seen as manna from heaven. Colorado’s marijuana economy’s booming, and its retailers have money to spend.
You can’t blame papers for hunting new revenue streams, and this one seemingly fell in Colorado papers’ laps. Local papers, local product (given that Colorado is, in effect, an island of weed among other states without legalizing statutes), local ads—the revenue can’t be bled off to a national audience via the internet (except perhaps ads encouraging pot tourism). In essence we seemed to have a fish-in-a-barrel scenario.
Sadly, however, the decision to go all in and accept advertising monies for a product that is still largely viewed as illegal elsewhere is folly, and Colorado newspapers (and their affiliated associations) cannot be shortsighted in their rush for cash. The gamble on the part of papers that have incorporated these revenues into their budgets could cost reporters and staff persons their jobs. And, any layoffs could cost us all in the form of unemployment benefits and other services.
There will always be newspapers; new streams of revenue will be found. For the doom and gloomers: more journalists may have to become backpack contractors before the revenue stabilizes. That said, this writer believes new funding can found through as-yet-discovered sources. He also believes that, in the end, level heads will prevail.