Marijuana Advertising And The First Amendment

Our cannabis lawyers been asked several times in the past couple of weeks whether we have any opinion on a Washington Superior Court decision that came out earlier this month that grappled with the interplay of government regulation and commercial free speech. There’s no copy of that Superior Court opinion available online, but in this post we will examine the basics of that case and predict whether it will have much or any impact on existing or proposed restrictions on marijuana advertising in Washington and in other cannabis-legal states.

In Havsy v. Department of Health, Judge Elizabeth Martin of Pierce County Superior Court had to determine whether the Washington Department of Health’s advertising restrictions on health care providers were unconstitutional. The regulation at issue stated that “A healthcare professional shall not: . . .Include any statement or reference, visual or otherwise, on the medical use of cannabis in any advertisements for his or her business or practice.” Plaintiff, Dr. Scott Havsy, had published an advertisement that contained a list of conditions for which medical marijuana could be recommended and included an image of a pot leaf in the ad. The Department of Health decided that the ad violated its rules, and Plaintiff took them to court.

Because we are dealing with commercial speech, the viability of the restriction under both Federal law and Washington law are the same. The court has to determine 1) whether the speech concerns a lawful activity and is not misleading; 2) whether government’s interest is substantial; 3) whether the restriction directly and materially serves the asserted interest; and 4) whether the restriction is no more extensive than necessary.

The main points of contention were on points 1) and 4). The Department of Health argued that medical marijuana was illegal, but the court rightly decided that regardless of the legality of medical marijuana sales, there is nothing illegal about a doctor providing marijuana recommendations as a service. The court relied primarily on the 4th prong, arguing that the speech restrictions were overbroad and not effectively tailored toward the problem the state was trying to solve.

Does this tell us anything about whether current advertising restrictions in Washington (or elsewhere) could fall to a challenge? Probably not. The court relied heavily on the fact that this was a blanket ban. Current advertising restrictions, though limiting, still allow for significant advertising activity. At best, Havsy v. Department of Health will merely serve as a reminder to state officials that full bans on advertising are probably unconstitutional. While it is an interesting decision, I do not expect shockwaves to emanate throughout the  cannabis industry.

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