Cannabis ads

The International Centre for Science in Drug Policy says here that we shouldn’t worry that Big Marijuana will be the kind of problem that Big Tobacco is. “Restrictions on advertising, requirements for product labelling on health harms, and investments in public education are regulatory controls that do not foster a large commercialized industry and can be adopted,”

The part about advertising is true in Uruguay and in many other places. But in the United States, advertising is harder to stop for cannabis than for tobacco. Big Tobacco signed away some of its Constitutional right to advertise in the Master Settlement Agreement.  That is, they agreed, as part of the deal settling lawsuits, to limit advertising that they had a Constitutional right to publish.  There’s no reason to think the cannabis industry will sign away anything. Is there?

Sure, the U.S. Constitution doesn’t protect advertising of a federally illegal product. But State Constitutions routinely have independent freedom of speech clauses that protect commercial speech. “Most state constitutions also contain provisions guaranteeing freedom of expression, and some provide even greater protection than the First Amendment.”  http://www.firstamendmentcenter.org/faq/frequently-asked-questions-speech

The tax angle here is the opportunity to take away state income tax deductions for cannabis advertising, explained here.  There is no Constitutional right to tax deductions — 280E hasn’t been challenged.  There’s more at http://www.huffingtonpost.com/pat-oglesby/marijuana-advertising-the_b_3810341.html.  Denying tax deductions may be the best you can hope for in the United States – unless an Initiative amends the State Constitution to take away state freedom of speech for marijuana businesses. But amending the State Constitution works only until federal legality comes.  Then the U.S. Constitution will provide commercial free speech protection to the industry – unless that commercial free speech doctrine fades generally, an outcome that I’d like to see.

Sure, commercial free speech protection is not total.  http://www.lawpublish.com/amend1.html say this: “Commercial speech now clearly has prominent place in the rights protected by the First Amendment. A 1993 Supreme Court opinion summarized the general principles underlying the protection of commercial speech:

“The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.” (Edenfield v. Fane, 123 L. Ed. 2d 543, 113 S. Ct. 1792, 1798 (1993).)”

That’s a federal case, but still.  Take California, for instance:

A California Supreme Court decision issued in November 2000 demonstrates conclusively that California’s Constitution provides broader protection for commercial speech than does the First Amendment. California’s high court concluded that a marketing order issued by the California secretary of food and agriculture implicates the right to freedom of speech under Article I of the California Constitution, even though it does not implicate any such right under the First Amendment to the U.S. Constitution. Gerawan Farming, Inc. v. Lyons, 101 Cal. Rptr. 2d 470 (Cal. 2000).

That’s from http://www.mediainstitute.org/ONLINE/FAM2001/Comspeech_L.html, quoting a California Supreme Court case noting the State Constitution’s “protection for commercial speech, at least in the form of truthful and nonmisleading messages about lawful products and services.”  So if California legalizes, newly legal cannabis businesses will get that broad commercial free speech protection.

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Author: patoglesby

From 1982 to 1990, I worked in tax policy for Committees of the United States Congress. In recent years, I was Adjunct Lecturer at UNC-Chapel Hill's Business School and then Adjunct Professor at its Law School.

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