You and Illinois’s new Cannabis Regulation and Tax Act. Part 3 – advertising and promotional restrictions and potential First Amendment concerns.

Section 55-20 of Illinois’s new Cannabis Regulation and Tax Act governs advertising and promotions of cannabis related activities.

The verb, advertise is broadly defined under Illinois’s new Cannabis Regulation and Tax Act as:

“Advertise” means to engage in promotional activities including, but not limited to: newspaper, radio, Internet and electronic media, and television advertising; the distribution of fliers and circulars; and the display of window and interior signs.

The act regulates the activity in several ways. Starting with barring any person or establishment from engaging in advertising that contains any statement or illustration that:

(1) is false or misleading;

(2) promotes overconsumption of cannabis or cannabis products;

(3) depicts the actual consumption of cannabis or cannabis products;

(4) depicts a person under 21 years of age consuming cannabis;

(5) makes any health, medicinal, or therapeutic claims about cannabis or cannabis-infused products;

(6) includes the image of a cannabis leaf or bud; or

(7) includes any image designed or likely to appeal to minors, including cartoons, toys, animals, or children, or any other likeness to images, characters, or phrases that is designed in any manner to be appealing to or encourage consumption of persons under 21 years of age.

The new Illinois recreational marijuana law also prohibits cannabis business establishments and “persons” and “entities” from placing or maintain (or causing the placing or maintaining of) cannabis or cannabis-infused product advertising in “any form or through any medium:”

(1) within 1,000 feet of the perimeter of school grounds, a playground, a recreation center or facility, a child care center, a public park or public library, or a game arcade to which admission is not restricted to persons 21 years of age or older;

(2) on or in a public transit vehicle or public transit shelter;

(3) on or in publicly owned or publicly operated property; or

(4) that contains information that:

(A) is false or misleading;

(B) promotes excessive consumption;

(C) depicts a person under 21 years of age consuming cannabis;

(D) includes the image of a cannabis leaf; or

(E) includes any image designed or likely to appeal to minors, including cartoons, toys, animals, or children, or any other likeness to images, characters, or phrases that are popularly used to advertise to children, or any imitation of candy packaging or labeling, or that promotes consumption of cannabis.

There is a broad exception to these restrictions for educational messages.

And as far as promotions are concerned freebies and games are out:

(d) Sales promotions. No cannabis business establishment nor any other person or entity may encourage the sale of cannabis or cannabis products by giving away cannabis or cannabis products, by conducting games or competitions related to the consumption of cannabis or cannabis products, or by providing promotional materials or activities of a manner or type that would be appealing to children.

These prohibitions are similar to, but do not directly mirror, restrictions that Courts have found unconstitutional under the Supreme Court’s First Amendment commercial speech jurisprudence.

Prohibitions premised on protecting children aside, banning truthful content in a public forum is an uphill battle for states. Regulations are rarely tested as regulators seldom enforce these rules leaving a dearth of test cases. Those cases brought to Court are generally winners provided litigants create a substantial record and don’t go for an easy win through appealing the denial of an injunction. Take, for instance, the recent 8th Circuit challenge to Missouri’s alcohol advertising restrictions (a poor example given they also won on appeal of the injunction, but a good example of creating the record to support a lack of narrow tailoring and achieving a substantial interest at the trial level after remand). In that case, alcohol advertising restrictions were found unconstitutional on the commercial speech criteria advanced under the Supreme Court’s Central Hudson factors which restrict regulations limiting commercial speech when:

• The expression at issue is protected by the First Amendment (e., not unlawful or misleading); and
• The asserted government interest is not substantial; or
• The regulation does not directly advance the governmental interest asserted; or
• The regulation is “more extensive than is necessary to serve that interest.”

Under these guidelines, it is hard to see how advertisements utilizing cannabis leafs, depicting consumption, or in the public forum would pass First Amendment muster – even on the basis of State application of the law rather than a Federal challenge that would not meet the “lawful” activity requirement given the current status of cannabis under the Controlled Substances Act.