The Smoke Thickens for Both Radio and TV on Marijuana Ads

Both TV and radio stations are learning that medical marijuana can give you a bad headache. However, everyone, including the Department of Justice, currently seems uncertain as to the long-term prognosis for stations that aired medical marijuana ads. As I wrote here last week, leading to a number of articles on the issue in trade press and around the web this week, it is clear that the DOJ has abandoned any pretense of taking a restrained approach to the natural conflict between state laws permitting medical marijuana and federal laws prohibiting it as an illegal drug. The question I had raised back in May, and focused on in last week’s post, was whether the threat to media running medical marijuana ads had moved from theoretical to imminent.

When the DOJ sent letters to the landlords of medical marijuana dispensaries last week telling them to evict their dispensary tenants or risk imprisonment, forfeiture of their buildings and confiscation of all rent collected from those dispensaries, it became clear that media collecting ad revenues for promoting the sale of medical marijuana could just as easily be in the DOJ’s crosshairs. What I found interesting about the reaction to last week’s post, however, was an assumption by many that this is a radio-only issue, and that television stations “did not inhale” medical marijuana ad revenues these past few years. However, the first (and as far as I know, only) medical marijuana complaint pending at the FCC was lodged against a large market network TV affiliate.

The DOJ apparently doesn’t see it as a radio-only matter either. When the issue was raised by a reporter this week, U.S Attorney Laura Duffy caused a stir by announcing that her next target is indeed medical marijuana advertising, noting that she has been “hearing radio and seeing TV advertising” promoting the drug.

The good news for media in general is that, unlike the FCC, the DOJ is less concerned about past conduct, and more interested in reducing future medical marijuana advertising (and thereby reducing future medical marijuana sales). It was therefore in character when Ms. Duffy announced that her first step would be notifying media “that they are in violation of federal law.” The DOJ followed a similar approach in 2003 when it sent letters to broadcasters and other media threatening prosecution of those running ads for gambling websites on grounds that those media outlets were “aiding and abetting” the illegal activities. You can read a copy of the letter here. I note with a bit of irony that one of the arguments made by the DOJ in the 2003 letter is that stations should not be airing ads for online gambling “since, presumably, they would not run advertisements for illegal narcotics sales.”

While the DOJ later pursued some media companies for running ads for online gambling, including seizing revenue received from those ads, its efforts were principally aimed at making an example of those who failed to “take the hint” from the DOJ’s 2003 letter. It seems likely that the DOJ will follow a similar path with regard to medical marijuana ads, focusing primarily on putting an end to the airing of such ads as opposed to pursuing hundreds of legal actions against those who previously aired them.

Also providing at least a small sense of relief for media are more recent statements from the office of Ben Wagner, one of (along with Laura Duffy) California’s four U.S. Attorneys, indicating that he is not currently focusing on medical marijuana advertising. While that could obviously change at any time, it does suggest that any action against media for medical marijuana advertising is at the discretion of the individual U.S. Attorney, and not an objective of the DOJ as a whole.

If the DOJ remains true to its past practices, then broadcasters and other media can likely avoid becoming a target for legal action by ceasing to air medical marijuana ads now. Pursuing individual media outlets is resource-intensive for the DOJ, and raises some thorny legal issues. More to the point, there is little to be accomplished by such actions if media outlets have already stopped airing the ads.

With regard to the FCC, however, broadcasters are not so lucky. Unlike the DOJ, which can choose whether to pursue an action against a media outlet, the FCC will likely be forced to address the issue both in the context of adjudicating complaints against broadcasters for airing medical marijuana ads, and in considering whether a station’s past performance merits renewal of its broadcast license. Given the classification of marijuana as an illegal drug under federal law, and particularly in light of the government’s other attacks on components of the medical marijuana industry, it will be difficult for the FCC to avoid confronting the issue, even where a station stopped airing the ads years ago. As a result, print and online media outlets may be able to get the marijuana advertising out of their systems fairly quickly, but broadcasters could be suffering legal flashbacks for years to come.