If the video clip you sent me presents the totality of evidence for the ad ban [Eds: It does], then the testimony does not come close to providing a factual basis for the regulation that would withstand a constitutional challenge.

All that I heard were the conclusory assertions of Senators Kohl-Welles and Baumgartner. There was no evidence produced, for example, showing that ads in newspapers promote illegal use any more than those for alcohol or tobacco. There was certainly no evidence that displaying a marijuana leaf in an ad necessarily “promotes or tends to promote the use or abuse of cannabis.” I believe that part of the act certainly will not survive a constitutional challenge...

Senator Baumgartner condemned “the current forms of medical marijuana advertisements,” without exception. In court, the state would have to present substantial evidence that a particular ad promotes illegal use. The government’s burden of proof “is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” (Edenfeld v. Fane (1993)) “[T]he regulation may not be sustained if it provides only ineffective or remote support for the government's purpose.” (Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York (1980))

The rule may also be struck as unduly vague as it would be hard to know when an ad for medical marijuana services is presented in a “manner that promotes or tends to promote the use or abuse of cannabis.” Or, more specifically, it would be difficult for an advertiser to know when the Department of Health would consider it so.

The bill also bans health care professionals from “[i]nclud[ing] any statement or reference, visual or otherwise, on the medical use of cannabis in any advertisement for his or her business or practice.” I think this is unconstitutional on its face.

It would prevent a doctor from advertising a lawful service, i.e., recommending the medical use of cannabis. Moreover, medical marijuana patients have a valid interest in learning which providers will make such recommendations. This is no different than a ban on advertising one’s specialty, which the Supreme Court has struck down.

For example, a bar rule association (in another state) against attorneys advertising that they were “certified” or “specialists” in certain areas, such as trial advocacy, was held unconstitutional. The flat ban was unsupported by evidence that consumers were misled by such statements, and in any event the Bar could take less restrictive steps to protect the public, e.g., by screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of a specialty. (Peel v. Attorney Registration & Disciplinary Comm’n.). Government may not act on the premise that consumers will “make bad decisions if given truthful information” about a lawful product. (Thompson v. Western States Medical Center (2002))

Again, however, I wish to add a caveat...

A court might view this as a unique situation. The First Amendment’s protections for commercial speech only apply to ads for lawful products. Cannabis sales may be lawful under limited circumstances in the state, but they still are forbidden to most of the population as a dangerous product under state and federal law. The court might decide, in other words, that cannabis ads don’t qualify as protected commercial speech.

I think it likely the Supreme Court would find it to be protected commercial speech, but I’ve been wrong before.