{"id":1587,"date":"2024-06-26T11:56:58","date_gmt":"2024-06-26T15:56:58","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/cannabis\/?p=1587"},"modified":"2024-06-26T11:56:58","modified_gmt":"2024-06-26T15:56:58","slug":"cases-were-watching-constitutionality-of-state-restrictions-on-cannabis-advertising","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/cannabis\/2024\/06\/26\/cases-were-watching-constitutionality-of-state-restrictions-on-cannabis-advertising\/","title":{"rendered":"Cases We\u2019re Watching: Constitutionality of State Restrictions on Cannabis Advertising"},"content":{"rendered":"

By Paul Josephson<\/a> and James Hearon<\/a><\/strong><\/em><\/p>\n

State cannabis advertising bans are getting their day in court, albeit before the federal Fifth Circuit, a court that has been increasingly hostile to regulation.<\/p>\n

In February 2022, Mississippi enacted the Medical Cannabis Act, legalizing medical marijuana within the state. The Act granted the Mississippi Department of Health (\u201cMDOH\u201d) authority to establish and promulgate rules and regulations governing the advertising of medical cannabis.<\/p>\n

The Act made clear that any proposed rules or regulations could not prohibit a cannabis operation from engaging in certain types of marketing and advertising, including displaying appropriate signage on the licensed premises, listing in business directories and other publications, or displaying logos or other branding materials.\u00a0 In promulgating its proposed regulations, MDOH prohibited licensees from advertising or marketing in any form of media (i.e.<\/em>, broadcast, electronic, print, etc.)<\/p>\n

In November 2023, Tru Source Medical Cannabis, LLC challenged MDOH\u2019s advertising restriction as a violation of the First Amendment. In January 2024, the Northern District of Mississippi federal court upheld the advertising ban and dismissed the lawsuit, entitled Cocroft, et al. v. Graham, et al.<\/em><\/a>, in its entirety. The district court relied extensively on the Montana Supreme Court\u2019s analysis in Montana Cannabis Industry Association v. State of Montana<\/em>, 368 P.3d 1131 (Mont. 2016), rejecting a similar challenge to cannabis ad regulations. The district court agreed that \u201can activity that is not permitted by federal law\u2014even if permitted by state law\u2014is not a \u2018lawful activity\u2019\u201d and, thus, does not qualify for commercial speech protection.\u00a0 Tru Source appealed this ruling to the Fifth Circuit.<\/p>\n

We are closely watching the Fifth Circuit\u2019s decision to see whether antipathy for cannabis or regulatory overreach will prevail. The circuit, which embraces Texas, Louisiana and Mississippi, has been making headlines lately for rulings hemming in the authority of federal agencies. In recent cases, the Fifth Circuit rejected FDA rules permitting use of the abortion-inducing drug mifepristone (just overturned by the Supreme Court late last week), tossed out the SEC\u2019s system for adjudicating enforcement cases, and declared the Consumer Financial Protection Bureau\u2019s funding mechanism unconstitutional (also reversed by the Supreme Court). The Fifth Circuit has been in the legal spotlight, and its rulings have been keeping the Supreme Court busy.<\/p>\n

The Fifth Circuit\u2019s decision is also likely to implicate a much broader and unsettled legal question; that is, whether constitutional protections apply to state-legal, but federally prohibited, conduct. In 2022 and 2023, we saw a number of constitutional challenges to residency requirements in state cannabis regulations alleging that such requirements discriminate against out-of-state operators and violate the Dormant Commerce Clause.<\/p>\n

Several courts, including the First Circuit<\/a> and the Eastern District of Michigan<\/a>, have held that discriminatory residency requirements likely violate the Dormant Commerce Clause. Other federal courts, such as the Western District of Washington<\/a> and the District of Maryland<\/a>, have found that, because cannabis is federally illegal, the Dormant Commerce Clause likely does not apply\u2014the same rationale relied on by the district court in Cocroft<\/em>.<\/p>\n

The Fifth Circuit\u2019s recent history as a venue where regulators have fared poorly suggests Mississippi\u2019s outright ban on commercial speech by state-legal businesses will get a hard look. Briefing will be complete shortly, and we would expect oral argument and a decision before year end.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Paul Josephson and James Hearon State cannabis advertising bans are getting their day in court, albeit before the federal Fifth Circuit, a court that has been increasingly hostile to regulation. In February 2022, Mississippi enacted the Medical Cannabis Act, legalizing medical marijuana within the state. The Act granted the Mississippi Department of Health (\u201cMDOH\u201d) … <\/p>\n

Continue reading “Cases We\u2019re Watching: Constitutionality of State Restrictions on Cannabis Advertising”<\/span><\/a><\/p>\n","protected":false},"author":295,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[950,63,84,1020,126],"ppma_author":[718,1015],"class_list":["post-1587","post","type-post","status-publish","format-standard","hentry","category-general","tag-advertising","tag-cannabis","tag-first-amendment","tag-jim-hearon","tag-paul-josephson"],"authors":[{"term_id":718,"user_id":295,"is_guest":0,"slug":"ppjosephson","display_name":"Paul P. Josephson","avatar_url":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-content\/uploads\/sites\/35\/2017\/11\/josephsonpaul-1-125x150.jpg","author_category":"","last_name":"Josephson","first_name":"Paul P.","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/paulpjosephson.html","description":"Read Paul's bio.<\/a>"},{"term_id":1015,"user_id":663,"is_guest":0,"slug":"jhearon","display_name":"Jim Hearon","avatar_url":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-content\/uploads\/sites\/35\/2023\/09\/hearonjames-100x100.jpg","author_category":"","last_name":"Hearon","first_name":"James","job_title":"","user_url":"https:\/\/www.duanemorris.com\/attorneys\/jameshearon.html","description":"Read Jim's Bio<\/a>"}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/posts\/1587","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/users\/295"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/comments?post=1587"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/posts\/1587\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/media?parent=1587"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/categories?post=1587"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/tags?post=1587"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/cannabis\/wp-json\/wp\/v2\/ppma_author?post=1587"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}