Question: Matt, I heard that the Oregon legislature recently made some changes to Measure 91, the state’s new marijuana legalization law. Do these affect broadcasters in any way?
Matt: The Oregon legislature recently passed, and Governor Brown signed, HB 3400, which made some pretty dramatic changes to the recreational marijuana regime Measure 91 established. The changes may not mean much for broadcasters.
Measure 91, the ballot initiative passed by Oregon voters last fall, was pretty comprehensive, but once state officials sat down and tried to build a functioning system out of it, they ran into some problems. Throw in the normal political jockeying involved in something as controversial as recreational marijuana (remember, many voters, including a majority of voters in parts of the state, opposed the initiative), and it’s not surprising there were some tweaks. The change that catches the eye of many broadcasters, though, has to do with advertising.
Measure 91 instructed the Oregon Liquor Control Commission (OLCC), the agency mostly responsible for recreational marijuana regulation, to “regulate and prohibit any advertising by manufacturers, processors, wholesalers, or retailers of marijuana… [in] radio or otherwise.” HB 3400, however, allows for some advertising, instructing the OLCC to only “regulate and prohibit” ads which are “appealing to minors,” promote “excessive use” or “illegal activity,” or otherwise present “significant risk to public health and safety.” Setting aside the fact that all marijuana businesses are “illegal activity” under Federal law, this opens the door for a lot of marijuana advertising. Can broadcasters get in on it?
That’s the $64,000 question, and the answer seems to hinge on how much of a risk a broadcaster is willing to take. As we’ve discussed before, possession of all forms of marijuana (plants, buds, extracts, edibles, etc.) remains illegal under Federal law. It is classified as a Schedule I drug under the Controlled Substances Act of 1970, which means the Feds don’t recognize any legitimate uses, even for medicinal purposes.
As long as marijuana remains illegal under Federal law, broadcasters operating pursuant to a Federally-issued license (which is all of them!) that run marijuana ads risk the wrath of the U.S. Department of Justice, and DOJ problems can result in FCC problems.
We’ve urged broadcasters to avoid viewing marijuana as “legal”: All Oregon’s marijuana laws (including the medical marijuana act, Measure 91, and HB 3400) have no impact on Federal drug laws with regards to marijuana use. So while the OLCC might tell marijuana businesses that they can buy ads, that doesn’t mean that broadcasters can air them, or at least that they can air them without potential punishment from the Feds.
(Thanks to my colleague Jon Markman for helping prepare this Q & A.)
Matthew H. McCormick is the Co-Managing Member with the law firm of Fletcher, Heald & Hildreth in Arlington, VA, and is the Legal Counsel to the OAB. You may direct questions to Matt at firstname.lastname@example.org.