Precedent shows the restrictions on advertising may be illegal
If a Pennsylvania medical marijuana permit holder wants to advertise or otherwise market one of its products, it may be stepping into a regulatory cauldron with no easy way out.
The Pennsylvania Medical Marijuana Act authorizes the Office of Medical Marijuana — a division of the Pennsylvania Department of Health — to “restrict the advertising and marketing of medical marijuana, which shall be consistent with the federal regulations governing prescription drug advertising and marketing.” The regulations also require advertising and marketing materials to be approved by the department prior to their use.
But while the Medical Marijuana Act authorizes the department to regulate medical marijuana advertising, the regulations do not allow the department to regulate the content of those advertisements. Instead, the regulation only requires that all advertising and marketing materials be pre-approved, though this does not exist under federal law for pharmaceutical companies, as contemplated under the statute.
Regardless, many working in the Pennsylvania medical marijuana industry believe the department unfairly denies advertising and marketing requests because they may be too recreational-ish — meaning the advertising may spur unnecessary consumption or motivate people who do not “really” need medical marijuana to register as patients.
However, courts have severely restricted the government’s ability to limit commercial speech for prescription drugs based on such speculative reasons. Commercial speech is entitled to constitutional protections under both the United States and Pennsylvania constitutions’ free speech clauses so long as the speech concerns lawful activity and is not misleading. In fact, the Pennsylvania Constitution provides protection for speech, including commercial speech, that is broader than that found in the United States Constitution (see DePaul v. Pennsylvania Gaming Control Board, 2009).
In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), the U.S. Supreme Court ruled unconstitutional a Virginia statute, declaring it unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs. According to the Supreme Court, the state can restrict commercial speech of pharmacists that is untruthful, deceptive or misleading, or for unlawful products, but a state cannot restrict a pharmacist’s advertising because its offers will be taken up by “too many” customers or may cause excessive competition. Thus, any effort by the department to regulate anything other than untruthful advertising would seem to run afoul of this ruling by the Supreme Court.
A few years later, in Central Hudson Gas and Electric Corp. v. Public Service Commission (1980), the U.S. Supreme Court created a four-part test to determine if a state restriction on commercial speech violates the First Amendment: (a) does the speech at issue concern lawful activity and is the speech misleading?; (b) does the government have a substantial interest in regulating the speech?; (c) does the regulation directly advance that governmental interest?; and (d) is the regulation no more restrictive than need be — that is, are there less restrictive means of achieving the government’s substantial interest?
The Pennsylvania Supreme Court subsequently adopted this four-part test, which places the burden on the commonwealth to demonstrate that its restrictions are constitutional (see Insurance Adjustment Bureau v. Ins. Comm. For the Com. of PA, 1988).
Any attempt by the Department of Health to restrict advertising to ensure medical marijuana is not promoted to people who do not “really” need it — or because it appears too recreational-ish — will likely run afoul of the Central Hudson test.
Commercial advertising and marketing for permit holders is lawful — under state law — as long as the message is truthful and not misleading. Further, if the state’s interest in restricting advertising for medical marijuana is to ensure it is not promoted to people who do not “really” need it, the U.S. Supreme Court squarely rejected a similar argument in Thompson v. Western States Medical Center (2002), where the court found unconstitutional the federal Food and Drug Administration Modernization Act’s prohibition on drug compounding pharmacists’ ability to solicit customers. In that case, the law required providers “not advertise or promote the compounding of any particular drug, class of drug, or type of drug.” The court, applying the Central Hudson four-part test, rejected the state’s purported interest in prohibiting the sale of compounded drugs to hypothetical “patients who may not clearly need them.”
According to the court in Thompson: “Even if the Government had argued that the FDAMA’s speech-related restrictions were motivated by a fear that advertising compounded drugs would put people who do not need such drugs at risk by causing them to convince their doctors to prescribe the drugs anyway, that fear would fail to justify the restrictions. Aside from the fact that this concern rests on the questionable assumption that doctors would prescribe unnecessary medications, this concern amounts to a fear that people would make bad decisions if given truthful information about compounded drugs. We have previously rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information.”
Time will tell
Still, if a state court agreed with the Department of Health that Pennsylvania has a substantial interest in restricting advertising and marketing to persons who do not “really” need medical marijuana, the department cannot meet the third and fourth elements of Central Hudson. Pennsylvania already has robust laws that address qualifications and registration for both prescribing physicians and patients to restrict medical marijuana to only those patients with qualifying medical conditions. And, as noted by the Pennsylvania Supreme Court in Insurance Adjustment Bureau, application and enforcement of existing laws is a less restrictive means of advancing the government’s interest. The only people who can enjoy the benefits of any cultivation or dispensary advertising or promotional activities are registered patients who hold a current Pennsylvania medical marijuana card. Thus, these existing limitations call into question whether the department’s restrictions “directly advance” any interest in prohibiting the use of marijuana by those who may not “really” need it.
Of course, for commercial speech to have protection as noted above, it must not be untruthful, deceptive or misleading, or for an unlawful purpose. As to the latter, whether medical marijuana sold in accordance with Pennsylvania’s Medical Marijuana Act is “legal” will depend on whether any challenge to the act’s commercial speech restriction is brought in state or federal court. Since marijuana is illegal under the federal Controlled Substances Act, any challenge will likely only succeed in Pennsylvania state court.
Time will tell whether a permit holder will challenge one of the department’s advertising restrictions. Only then will Pennsylvania permit holders receive adequate direction on what is and what is not permitted.
Until then, permit holders may be subject to ad hoc and unreasonable restrictions on their commercial speech.