Mississippi is among more than three-dozen states that have given the green light to medical cannabis. However, Mississippi also prohibits any form of advertising among cannabis companies. This includes dispensaries. A lawsuit challenging the ban was recently filed by the owner of an Olive Branch dispensary. It would appear as though the central complaint goes back to the question of legality.
Dispensary owner Clarence Cocroft II insists in his lawsuit that Mississippi’s all-out ban on cannabis advertising is a violation of his first amendment rights. His attorney told the High Times that, “if it is legal to sell a product, it is legal to talk about that product.” But that statement could be the lawsuit’s undoing.
Marijuana is Not Legal
Among the many points that will be undoubtedly brought up during the trial is the legal status marijuana currently enjoys in Mississippi. Despite what so many people think, the state has not legalized marijuana. In fact, no state has. Marijuana is illegal under federal law. States do not have the authority to supersede the federal statute unless the Supreme Court determines the statute to be unconstitutional. Any laws made to that effect are automatically null and void.
State lawmakers know this. So instead of legalizing medical and recreational cannabis, they decriminalize it instead. Decriminalization is a legal position stating that a jurisdiction will not prosecute crime. So in the case of decriminalizing marijuana, state lawmakers agree to no longer go after people committing marijuana crimes. In simple terms, they are agreeing to turn a blind eye.
The fact that marijuana remains federally illegal does not give dispensary owners a first amendment leg to stand on. First amendment protections do not apply to promoting illegal activity. That is why prostitutes cannot advertise. It’s why hitmen can’t take out TV ads offering a two-for-one special.
Regulations Vary by State
Another difficulty the plaintiffs will have in this case is distinguishing why advertising an illegal substance should be granted an exception in their case. The issue is exacerbated by the fact that regulations vary from one state to the next. Granted, Mississippi has some of the most strict bans against marijuana advertising in the nation. But other states have their restrictions as well.
Utah is by no means as strict as Mississippi. However, medical cannabis dispensaries like Brigham City’s Beehive Farmacy are still limited in how they can advertise. For example, medical cannabis pharmacies in Utah cannot run TV or radio advertisements. But they can operate websites displaying their brands, products, pricing, etc.
The state of Mississippi could argue that allowing a medical cannabis pharmacy to put signs in its window is no different than Utah allowing dispensary owners to publish websites. Successfully arguing the point would allow the state to say that all advertising is not banned. Advertising is merely limited in the same way tobacco, alcohol, and pornography advertising are limited.
The Least Intrusive Means
I am by no means a legal or constitutional expert. But I do know enough about the constitution to understand that states have the ability to exercise some restrictions over constitutional rights as long as they can demonstrate a genuine need to do so, and their chosen method is the least intrusive means to accomplish their goals.
Based solely on that one principle alone, I don’t see how Mississippi could lose the lawsuit. But anything is possible. We will have to wait to see what the court decides. If it rules in favor of the dispensary owner, big changes will ultimately come to Mississippi’s cannabis scene. Would lawsuits follow in other states?