There is a lot for medical-marijuana advocates to be excited about in Senate Bill 5073, Washington's latest legislation, was approved by the Washington State Senate last night. It offers more protections for patient employees and takes most of the state's pot dispensaries out of the gray area that had hitherto classified them as illegal. But amid all the clarity that the legislation will create for pot patients, one part of the law that deals with medical-marijuana advertising seems to only make things more confusing. And one University of Washington law professor and First Amendment expert says it's "clearly unconstitutional."
The bill currently states:
"No person, partnership, corporation, association, or agency may advertise cannabis for sale to the general public in any manner that promotes or tends to promote the use or abuse of cannabis. For the purposes of this subsection, displaying cannabis, including artistic depictions of cannabis, is considered to promote or to tend to promote the use or abuse of cannabis."
Writing to Seattle Weekly, Jay compares the law's potential treatment of marijuana to similarly regulated products like tobacco or alcohol.
Stewart Jay, a UW professor of law, says that the advertising restrictions in SB 5073 are unconstitutional
"If a court views medical marijuana as akin to tobacco or alcohol, this law is clearly an unconstitutional regulation of commercial speech under several Supreme Court decisions," he writes. "Or, more specifically, it would be unconstitutional as applied to many ads for medical marijuana. (The ban on "artistic depictions of cannabis" is especially suspect.) It is a lawful product, even if for a restricted group. The same is true for tobacco, alcohol, and prescription drugs. It would be possible to regulate ads for medical marijuana along the lines of those products, but to be constitutional the statute needs to be much more limited."
The Washington branch of the American Civil Liberties Union also has concerns. Alison Holcomb, ACLU policy director in Washington, says the law is "too vague."
"We're concerned that the language 'promotes or tend to promote the use or abuse of cannabis' may be too vague to both the entities that are creating advertising and distributors of cannabis to know whether they've crossed the line," she says. "I would like us to have a fuller conversation about what would be reasonable restrictions in advertising that would still allow producers and dispensers to show where to access cannabis and how much it will cost."
Furthermore, Jay sees the legal bind that the state finds itself in as something he's seen coming for years. In wanting to make a formerly restricted product legal, but still wanting major restrictions, he says the state legislature is trying to adopt the role of a specialized body like the Department of Health, but is failing miserably.
Instead of using a "blunderbuss provision like this one," Jay says that the state legislature should pass a more generalized bill, then delegate the task of regulating things like advertising to agencies better suited to doing so.
"It would be better for the legislature to set a general standard for what it wants accomplished: no promotion of the illegal use of cannabis or abuse of lawfully-obtained cannabis," writes Jay. "Then it should delegate to an agency like the Department of Health the task of writing regulations for ads."