WASHINGTON, D.C. — In case you missed it, the MORE Act was approved last week in the House of Representatives.
Does this mean broadcast radio and TV stations are now free to air marijuana advertisements? Not so fast, David Oxenford of Wilkinson Barker Knauer warns.
In a WBK Broadcast Law Blog post, Oxenford notes the actions taken by the lower body of Congress to decriminalize marijuana under federal law.
This, he explains, would include removing marijuana from Schedule I — a list of drugs prohibited in the United States, with very few exceptions.
“The passage of this bill through the House … should not be taken as a sign to start running marijuana advertising on your broadcast station, though there are some signs that the day on which that advertising can be run may be in sight,” he says.
First, it is important to remember that this bill passed only in the House of Representatives. “Without also being approved by the Senate and being signed by the President, the House’s action had no legal effect,” Oxenford reminds media executives. “Because of the way that Congress works, if the bill does not pass the Senate in the current legislative session, which ends in the first few days of January 2021, the whole process must start over again.”
Good luck with that. Bills do not carry over from one Congressional session to another.
“So, to become law in the new year, a new Congress would have to start with a new bill, and a new House of Representatives and a new Senate would both have to vote to adopt the legislation,” Oxenford says.
As such, the MORE Act is — more or less — toast.
Absent Senate approval, which is doubtful in this lame duck session, “broadcasters run a real risk in running marijuana advertising even if they operate in a state that has legalized its use.”
David Oxenford, Wilkinson Barker Knauer LLP
According to Oxenford, the Commission “could be forced to take actions against a licensee for running this advertising if a complaint is filed against a station running such ads – including during the ongoing license renewal process.”
In addition, he adds, “there are still federal criminal penalties for promoting Schedule 1 drugs, including a specific prohibition against using radio waves to promote its sale and distribution.”
But does that House action signal movement in the future?
“[W]ith a new administration and a new Congress in 2021, and a different regulatory status in many states across the country, one can see that there has been a general shift in the regulatory climate surrounding marijuana legalization,” Oxenford says. “That shift could well lead to further rule changes in the near term. Until then, broadcasters should act with caution, but should stay alert to see how future regulatory actions play out.’
