Mississippi Makes It a Crime to Advertise Legal Medical Marijuana Businesses

Clarence Cocroft filed a lawsuit this week challenging the state's virtual ban on advertising medical marijuana businesses, arguing the law violates his First Amendment rights.

Clarence Cocroft is the owner of a legal medical marijuana business in Olive Branch, Mississippi. However, while his business is perfectly legal, the state is hell-bent on making it practically impossible for him to actually stay afloat. How? By making it a felony for Cocroft to advertise his business. 

Mississippians overwhelmingly voted to legalize medical marijuana in 2020, yet the state has enacted a series of regulations that make it virtually guaranteed that legal marijuana businesses will fail to thrive. Not only does the state have a gauntlet of restrictive regulations that make finding an appropriate storefront extremely difficult (marijuana businesses cannot be within 1,000 feet of a church, school, or daycare, for example), but once a business opens, they're barred from nearly all forms of advertisement. 

Under state law, medical marijuana businesses are banned from advertising through an extremely extensive range of media, including print media, television, radio, social media, mass text and email, and billboards. Signage for businesses themselves is also restricted. Not only are businesses prohibited from displaying their products in store windows, but storefront advertising cannot include cannabis leaf or bud imagery. Even websites are restricted to only providing the business' "contact information, retail dispensing locations, and a list of products available," as well as "general information reasonably expected to be necessary to serving qualified patients of the Medical Marijuana Program."

The price for slipping up is high—violators face felony charges.

This week, the Institute for Justice, a public interest law firm focused on government abuse, filed a lawsuit challenging the regulations by arguing they violate business owners' First Amendment rights.

"Taken together, these provisions constitute a complete prohibition . . . on all forms of advertising not explicitly and specifically permitted by the Mississippi Medical Marijuana Act," the lawsuit writes.

The rules have been devastating for Cocroft as he attempts to keep his business running. After successfully securing a storefront that met the state's stringent requirements, he has struggled to bring in customers—something made even harder by the fact that his store, Tru Source, is located in an industrial park with little foot or vehicle traffic.

"It is common for clients to call Tru Source and ask for directions the first time they go. Tru Source employees have to provide these clients with landmarks and step-by-step directions to find the dispensary. But for the Ban, Clarence would place signage on major roads near the dispensary to provide directions," the complaint reads. "As a result of Defendants' ban, Tru Source has struggled to reach its desired clientele, cannot promote its products or its location, and has sustained and will continue to sustain significant harm."

"The Department's complete ban on advertising and marketing in any media violates the First Amendment of the United States Constitution by prohibiting business owners like Clarence from engaging in truthful commercial speech to promote their legal businesses," the complaint argues. "By banning truthful and non-misleading advertisements about a legal product, the Department of Health has abridged Plaintiffs' freedom of speech and the freedom of speech of anyone else similarly situated."

While the citizens of Mississippi voted to make medical marijuana legal, state lawmakers enacted labyrinthine rules that make actually running a thriving legal cannabis business practically impossible. The state's ban on advertising goes far beyond any legitimate policy aim and clearly violates business owners' First Amendment rights. 

By enacting these regulations, Mississippi lawmakers are likely to get the outcome they really want—a status quo in which medical marijuana is technically legal but nearly impossible to obtain legitimately, meaning that patients will once again be forced to look to the black market to find the products they need.

Comments

[Chumby]

MS wants to keep the lid on that pot.

[Don't look at me!]

He should be able to advertise the joint, it’s a budding industry.

[Chumby]

It would help stem possible bankruptcy, which would risk investors providing seed money from getting a return.

[Dr. Ed 2]

If this is medical marijuana, isn't the state already doing his advertising for him, i.e. maintaining a list of the names and addresses of licensed pharmacies that people with legitimate prescriptions can have access to.

Mississippi isn't doing anything that other states do to cigarettes, or to prescribed opiates for that matter.

[Diane Reynolds (Paul.)]

It feels like Reason has lit up a policy that's a little too far into the weeds for me to care about.

[Chumby]

It didn’t bowl you over?

[Diane Reynolds (Paul.)]

Surely they have more dope articles in the pipe.

[Chumby]

That might start a grassroots effort to provide folks with some releaf.

[Don't look at me!]

He’s hoping the advertising will allow him to smoke the competition.

[Homer Thompson]

and yet the dispensary is on weedmaps ... swing and a miss

https://weedmaps.com/dispensaries/tru-source

[windycityattorney]

So the question then is whether a 3rd party who exists to inform the public where dispensaries are located has also violated the MS statute. If it only prevents the business owner or company from advertising, perhaps not. But if the state could show the business owner paid weedmaps to display their store (or rank it higher than other stores or something), then I think the business may have an issue under the statue...but the statute would be subject to the same first amendment claims raised in this story.

[SRG2]

On what state interest grounds is proximity to a church relevant?

[Diane Reynolds (Paul.)]

The exact same interest grounds that firearms and proximity to a school is relevant.

[SQRLSY One]

SOME of The Children go to church... AND some of The Children go to school!!! ALL (regulatory, anti-freedom) things are justified in The Name of The Children!!!

[SRG2]

That's a non-answer. Why are churches speshul here? Schools, yes. But if stores and office buildings are not considered, why should churches be? Are church-goers more prone to temptation than non-church-goers that they need state protection?

[Nardz]

https://twitter.com/TheInsiderPaper/status/1724894636848910510?t=8Sr3d4wVtsCPhjC2EIHucw&s=19

BREAKING: Hospital authorities in Haiti says a heavily armed gang burst into the facility and took hostage hundreds of women, children and newborns.

[Diane Reynolds (Paul.)]

The media can only support one baby-killing, hostage taking terrorist organization at a time. This one's going on the back burner.

[DRM]

Clarence Cocroft is the owner of a legal medical marijuana business in Olive Branch, Mississippi.

No, he isn’t.

However, while his business is perfectly legal,

No, it isn’t.

I mean, look, my sympathies here are all with the Institute for Justice. But when they walk into court, the lawyer for Mississippi is going to say, “There is no way that a federal court can find the federal Constitution gives this guy a right to advertise a business that is a felony under federal law.”

And even if they’ve managed to find a district judge who will find otherwise, the Fifth Circuit will slap them down, hard.

Unless this is a backdoor attempt to reverse Gonzales v. Raich, this is entirely quixotic.

[mse326]

That was my thought as well. I favor legalization, but the reality is that it hasn't happened yet. And something not being a state crime doesn't mean it is legal if it is still a federal crime as marijuana is.

If this is meant as a collateral attack on the constitutionality of the federal ban then, fine, but be honest about it. That is pretty important hurdle that would be worth a mention.

[Diane Reynolds (Paul.)]

That's my thinking as well. But who knows.

Oh hey, here's an interview with the most libertarian-adjacent senator that Reason didn't do.

[windycityattorney]

Is the first amendment not incorporated against the States? Does Mississippi have its own state constitution that has a provision similar to or identical to the 1st amendment? There are more than one way to reach a first amendment violation.

The fed govt's multiple spending riders (no money may be used to go after businesses in compliance with state law) and DOJ opinion's that they won't go after people compliant with state laws would likely be the reply to your above points if there isn't an adequate state law claim.

[charliehall]

Correct. Marijuana should be legal, period. Congress needs to remove it from Schedule I of the controlled substances list. The fact that it is classified the same as heroin -- and treated more severely than cocaine, which is actually a legal prescription drug -- is completely unjustified. The total number of persons who have died from the acute effects of smoking weed over the entirety of human history is zero.

(Heroin should actually be a legal prescription drug, too. It is effective as a post surgical analgesic.)

[Diane Reynolds (Paul.)]

Serious question for the libertarianish minded... are we indignant about this because it's a total ban on advertising instead of a targeted ban in certain places, media types and venues? And if it were a more targeted ban like... some other products which have had such targeted bans since 1967, would we be ok with it, or would we shrug and say "don't forego the mediocre for the slightly better"?

[chemjeff radical individualist]

I don't know what the targeted 1967 ban is that you are referring to.
But I tend to view advertising as a free speech issue. So government restrictions on advertising should be very rare. I can see additional complications due to the commercial nature of the speech, but the advertising would have to be some type of actionable fraud before the government should get involved.

[Don't look at me!]

Cigarette advertising on tv was 1967

[chemjeff radical individualist]

Oh ok, thanks. Didn't know that.

[Rev. Arthur L. Kirkland]

If there is any redeeming quality to Mississippi, it has not been revealed yet. Poorly educated, prudishly authoritarian, superstition-addled, rounding bigoted, economically ignorant, profoundly ignorant, obsolete hayseeds. Enabling those drawling dumbasses -- traitors, bigots, losers -- to resume statehood was an enormous mistake.

[Chumby]

It is no Kensington Avenue in Philadelphia that is for sure.

[Diane Reynolds (Paul.)]

I don’t trust a place that doesn't have freeway fires from homeless camps. That’s a true sign of cosmopolitan culture.

[Chumby]

It is such an affluent and utopian area that anyone that wants a used hypodermic needle could just reach down and pick up one that was discarded. How generous of them.

[Don't look at me!]

Or a city that needs a high pressure wash anytime a foreign leader comes to visit.

[Jerry B.]

You’re no doubt including the 44% of Mississippians who are not White, right? I guess stereotypers gotta stereotype.

[EISTAU Gree-Vance]

Lol. Adjective Artie has jumped the shark, folks.

[AT]

a status quo in which medical marijuana is technically legal but nearly impossible to obtain legitimately

I mean, that's what we want, right? We don't want drugs easy to get, correct? We don't want to empower the highway offramp panhandler by giving him easy and affordable access to drugs, such that he can spend an hour with his cardboard sign and then head on down to the local dispensary to go get stoned in his tent under the nearest overpass.

We're trying to stop that kind of thing, right?

[windycityattorney]

One might hazard a guess that the purpose of a medical marijuana law might be to get medical marijuana to qualifying patients, no?

[AT]

Maybe if there were any kind of realism behind the term "qualifying patients" that changes it to people who need it, rather than pretty much anyone who complains about a pain. The nation regularly discusses/debates the problem of our health care system "over-medicating" every symptom that presents. Why should this one be excluded?

To say nothing of the fact that the issuance of MMC's are rife with fraud, and that dispensation has very little oversight (much the way food stamp scammers operate: obtain the product using the program, and then resell to convert the benefits to cash).

[flag58]

I can remember when the only place lawyers could advertise was the phone book yellow pages.
Damn I am getting old.

[LIBertrans]

Name three things that are legal in Mississipoli.
Lynching, tar and feathering and girl-bullying don't count because they are mandatory. The question calls for LEGAL things or acts.

[wellos]

I have never thought about this type of business, but it seems quite profitable to me. In general, I love using medical cannabis when I'm stressed or depressed. I usually use this online dispensary https://westcoastbud.io/ to purchase quality cannabis products. In my opinion, cannabis is the best thing that nature could create to combat stress.