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By Aaron Pelley, Attorney at Harris Sliwoski
Mississippi’s Initiative 65
Easily one of the biggest legislative surprises of the 2020 was the passing of Mississippi’s Initiative 65, a medical cannabis bill with an extensive qualifying conditions list. In arguably the reddest and most socially conservative state in America — where only one Democrat has served as Governor since 1992, and where Republicans have a considerable majority in both houses of the Legislature — 69 percent of Mississippians gave Initiative 65 a landslide victory.
It’s worth noting that this bill passed in a state where the governor called the implementation of medical cannabis a “liberal” ballot created by “stoners” — despite it being very hard to believe that 70 percent of Mississippians are stoners, much less liberal stoners at that. A medical cannabis bill passing by a margin that substantial is undeniable proof in the very present support for at least medical cannabis expansion among Republicans remains on solid footing.
Since early 2023, medical cannabis has been available for qualifying patients in Mississippi and has sold over $35 million in its first year of sales and there are over 180 licensed dispensaries throughout the state. From Corinth all the way down to Biloxi, there are plentifully stocked dispensaries that are ready to serve the public.
Although medical cannabis is readily accessible for Mississippians who qualify, the state’s industry is still facing the continuous issues that always seem to arise over properly marketing and advertising either a cannabis brand or store. Partially due to the federal status and the stringent policies of nearly every major social media platform, digital marketing strategies for fully licensed and compliant cannabis companies are extremely limited. Because of these restrictions, cannabis brands and dispensaries are finding both success and reliability in their advertising through non-digital means, those being print magazine advertisements and more notably, highway billboard advertisements.
Advertising for Cannabis Businesses
Still though, the troubles surrounding proper advertising persist. Recently, the ruling of a federal judge in Mississippi has made advertising for cannabis businesses within the state even more difficult. Back in November, the owner of the Olive Branch-located medical cannabis dispensary Tru Source, Clarence Cocroft II, filed a federal lawsuit against numerous departments in Mississippi challenging the strict regulations that put lawfully operating cannabis businesses at a significant disadvantage when trying to successfully advertise. The argument that Cocroft and his attorneys leaned on was that the banning of medical cannabis dispensaries from advertising in Mississippi violates the business owners’ First Amendment rights. The defendants in the lawsuit represent a number of governmental departments, from the Department of Health to the Alcoholic Beverage Control Bureau.
“All I want to do, like any other business owner, is have the opportunity to advertise. If I pay taxes in this business, which I do, I should be able to advertise,” Cocroft said at a news conference. “All I’m asking from this state is to provide us with the same liberty that they’ve provided other businesses.”
Apparently, the advertising regulations entirely prohibit the advertising of medical cannabis businesses in any medium, whether that be digital or physical. Whereas other states have either local or statewide cannabis magazines and sites that allow cannabis businesses to properly advertise, Mississippi forbids cannabis businesses to even place magazine ads according to the regulations. Worse even for the neighboring states, they also have similarly disadvantageous policies. Arkansas, Louisiana and Alabama all prohibit dispensaries from advertising through “public mediums.”
“Under the ban, Clarence can’t advertise in any media. He cannot place ads in newspapers or magazines, on television or radio, or even on billboards that he already owns,” said Katrin Marquez, one of Cocroft’s attorneys. “The First Amendment does not allow a state to completely censor a legal business. If it is legal to sell a product, it is legal to talk about that product.”
Unfortunately for Cocroft and his fellow Mississippi cannabis business owners, Judge Michael P. Mills of the United States District Court for the Northern District of Mississippi sided with the state in a late January ruling. In his ruling, Judge Mills cited the still active federal prohibition of cannabis and that due to cannabis businesses not being considered a “lawful activity”, those businesses are not rewarded the same constitutional protections that other types of commercial speech or advertising usually receive.
Mills described relaxing the prohibition of medical cannabis advertising as a “drastic intrusion upon state sovereignty” and that by legalizing medical cannabis, the Mississippi Legislature had ventured further with cannabis reform as a whole than the United States Congress. “In light of this fact, on what basis would a federal court tell the Mississippi Legislature that it was not entitled to dip its toe into the legalization of marijuana, but, instead, had to dive headfirst into it?” Mills rhetorically asked in his ruling.
Mississippi Court Cannabis Ruling
This isn’t the first time we have disagreed with Mississippi court cannabis ruling. And despite the lawsuit being dismissed, Cocroft remains optimistic. He plans to appeal the decision to the 5th U.S. Circuit Court of Appeals. Cocroft views this lawsuit as eventually monumental, especially if it can overturn the many stringently anti-cannabis policies that exist across almost all traditional advertising platforms and strategies. “I’m prepared to fight this fight for as long as it takes,” Cocroft said. “This case is bigger than me and my dispensary, it is about defending the right of everyone to truthfully advertise their legal business in the cannabis industry.”
Reprinted with the permission of Harris Sliwoski
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