by David Oxenford, Broadcast Blog
Davis Dwight & Tremaine LLP
Oregon business law firm
As personal marijuana use becomes decriminalized in the states of Washington and Colorado, we once again repeat our warning to broadcasters who may be looking to pot sales as a new source of advertising revenue – remember that the Federal government still thinks that the drug is illegal. The US Attorney’s Office in Seattle has reportedly issued a statement reminding residents in Washington State of that fact, and told Washingtonians that the Department of Justice plans to enforce Federal law on all Federal properties in the state. How does this affect broadcasters?
Broadcasters are Federal licensees. Thus, there still is a concern that advertising for an activity that is considered a felony under Federal law might present problems if a license renewal is challenged or a complaint is filed. It is Federal law, of course, that governs the issuance and renewal of FCC licenses. No FCC official has been willing to say that advertising medical marijuana is permissible (and, as we wrote last year, a US attorney in California threatened to prosecute media outlets advertising medical marijuana clinics and to possibly seize property used for such advertising). As Washington state officials discuss how to license stores to sell pot under its new laws, some broadcasters may eye these stores, once authorized, as a potential new source of advertising revenue. Especially with license renewal now underway for radio stations in Colorado, and soon coming up for TV stations in Colorado and for broadcasters in Washington, now is probably not the time to press the limits of advertising a product with such an ambiguous legal status.
We note that universities in Washington are apparently facing a similar risk, as many get Federal funding for many research projects and other on-campus activities. Thus, these institutions are reportedly being cautious in their tolerance of marijuana use on their properties. On the medical marijuana side, we also hear often from broadcasters that they see their local newspapers running ads for local dispensaries. However, newspapers do not operate with a Federal license, so their considerations in deciding whether to run such ads may be different from those of Federally licensed broadcasters (though note the US attorney’s statements we referenced above might give any advertising outlet pause on how to proceed). In any event, while this may look like an enticing source of revenues, we don’t want your license to go up in smoke, so we urge caution.