Image Source Dr. Scott Havsy
A Tacoma doctor faces sanctions from the state Department of Health for advertising the fact that he writes medical marijuana authorizations for qualifying patients.
Image Source Dr. Scott Havsy
And here's Exhibit B:
At first blush, Havsy's only crime seems to be terrible graphic design. But it turns out there's actually a clause in Washington''s medical marijuana law that specifically outlaws advertising pot prescription services. Specifically, doctors cannot "include any statement or reference, visual or otherwise, on the medical use of cannabis in any advertisement for his or her business or practice."
A screen cap of the medical marijuana section of Havsy's website.
According to Department of Health spokesman Tim Church, Havsy is believed to be the first physician charged with breaking the law since it took effect last July. "We're unaware of any others," Church says. "I've asked numerous people and no one can remember another one."
The law is the result of SB 5073, the sweeping medical marijuana overhaul initially intended to clarify the state's stance on pot, legalize dispensaries, and increase regulation and oversight of the industry. Gov. Christine Gregoire partially vetoed the legislation, citing conflict with federal law. Several swaths of the bill got the axe from the governor, but the language prohibiting pot advertising managed to survive.
Havsy was unavailable for an interview yesterday, according to the receptionist at his Tacoma office, but he told the Tacoma News Tribune that he plans to fight the charges, which he says run afoul of the First Amendment.
"What they are trying to do is limit physician advertising," Havsy is quoted as saying. "This is not about marijuana. It's about physicians' right to advertise and inform the public about what we do...This is not obscenity. It's not something that's illegal. All I'm doing is taking information from the Health Department website and the statute and advising people. Mine is an informational website."
The doctor of osteopathic medicine (an alternative form of medicine that "recognizes the body's ability to heal itself") also used a slippery slope argument to question the validity of the law, saying, "Today it's marijuana. Tomorrow it might be abortions and women's right to choose."
Havsy isn't the only person to raise questions about the constitutionality of the advertising restrictions. Back when the legislature was still considering the proposal, UW law professor and First Amendment expert Stewart Jay told Seattle Weekly "this law is clearly an unconstitutional regulation of commercial speech under several Supreme Court decisions."*
The charges against Havsy are not criminal. Rather, the Department of Health believes he violated the law, and, as a result, they have the authority to take action against his medical license. Havsy still has the option of accepting a settlement (i.e. he admits he did wrong, takes down the website, pays a fine, etc.) but he has vowed to fight the charges by appealing to the Pierce County Superior Court and beyond.
(Records show Havsy has been in trouble with the Department of Health for unprofessional conduct twice before during his 32-year career: once for overbilling and behaving bizarrely around patients in 1997, and again in 2000 for failing to obtain a psychological evaluation as required by his settlement for the first incident.)
Church says the precedent-setting action against Havsy was the result of a citizen complaint, and that "we're not surfing the Internet looking for websites advertising marijuana." As for the freedom of speech issues, the spokesman takes a page from other law enforcement agencies and says the Department of Health is merely abiding by the letter of the law.
"It's not our job to decide if something is a good law or a bad law or anything like that," says Church, the Health Department spokesman. "It's our job to enforce a law. The legislature passed the law, the governor signed it, and now it's our job to enforce it. If he (Havsy) wants to argue freedom of speech, the legislature would be a better place to make that argument."
*This post was updated Tuesday at 11:07 a.m. A quote describing SB 5073 as "too vague" to hold up in court attributed to the ACLU referred a section of the law vetoed by Gov. Gregoire that dealt with broader restrictions on marijuana advertising, not just physicians as the original post indicated.