Are Marijuana Ad Restrictions Constitutional?



In its final report to the Colorado legislature, the Amendment 64 Implementation Task Force recommends severe restrictions on marijuana advertising that may be vulnerable under the state constitution's free speech clause. The task force urges the legislature to "prohibit all mass-market campaigns that have a high likelihood of reaching minors (billboards, television, radio, direct mail, etc.)," while allowing "advertising in adult-oriented newspapers and magazines." Although Amendment 64, which is now part of Colorado's constitution, calls for "restrictions on the advertising and display of marijuana and marijuana products," such restrictions presumably would still have to pass muster under Article II, Section 10 of the state constitution, which says "no law shall be passed impairing the freedom of speech" and "every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty."

Since marijuana is still prohibited by federal law, a First Amendment challenge to advertising restrictions like those suggested by the task force would not be viable. But unless the Colorado courts read the state constitution's free speech clause as substantially less protective than the First Amendment, it is hard to see how an ad ban as broad as the one favored by the task force could survive judicial review. Even though the U.S. Supreme Court applies a relaxed First Amendment standard to "commercial speech," it has overturned much less sweeping restrictions on tobacco advertising that were likewise intended to shield minors from messages about products they are not legally allowed to consume.

In the 2001 case Lorillard Tobacco v. Reilly, the Supreme Court overturned a Massachusetts ban on tobacco billboards within 1,000 feet of a school or playground, concluding that the rule was not narrowly tailored to advance a substantial government interest, as required by the test for restrictions on commercial speech laid out in the 1980 case Central Hudson Gas & Electric v. Public Service Commission of New York. Although the Court deemed preventing underage tobacco consumption a substantial government interest and even accepted the dubious argument that advertising restrictions directly advance that goal, it said the 1,000-foot rule swept too broadly, barring outdoor tobacco advertising from "a substantial portion of Massachusetts' largest cities" and in some places amounting to "nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers."

Based on similar reasoning, the U.S. Court of Appeals for the 6th Circuit last year overturned the advertising restrictions imposed by the Family Smoking Prevention and Tobacco Control Act of 2009, which banned the use of color or pictures in outdoor ads, indoor ads (except those in adult-only businesses), and print ads carried by publications with significant underage readerships. "Although the government can show a substantial interest in alleviating the effects of tobacco advertising on juvenile consumers," the court said, "the provision of the Act banning the use of color and graphics in tobacco advertising is vastly overbroad." Again, these regulations, while also aimed at protecting children, were less restrictive than the regulations that the Amendment 64 task force is recommending for marijuana, which would ban ads pretty much everywhere except "adult-oriented" publications and websites.

Would preventing minors from seeing ads for pot stores (which will be required to ask each customer for identification proving he is 21 or older) make them less likely to smoke marijuana? Exactly how would that work? By shielding kids who have never heard of marijuana or do not realize it is now legal in Colorado? Survey data indicate that half of all teenagers have tried pot by the time they graduate high school, while only two-fifths have tried cigarettes, a legal product that is still widely advertised (although not as widely as it used to be). It is hard to believe that letting pot stores advertise on billboards or in publications aimed at general audiences (assuming they would accept the ads) would make pot smoking more appealing to teenagers. But it might make the emerging marijuana industry less offensive to cannabis-averse Coloradans and federal drug warriors, which is probably the real point.