Court Greenlights Doctors to Discuss Marijuana

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Although the marijuana industry has made considerable gains in the last several years, marijuana advertising remains more or less an untapped market. Most states are still reluctant to embrace marijuana in the first place, much less accept an advertisement for it on television.

However, laws regarding marijuana marketing may soon start to change as a judge in the state of Washington has ruled that doctors may discuss medical marijuana in advertisements.

The Puget Sound Business Journal reported that the case originated when Dr. Scott Havsy was sued by the Washington State Department of Health over advertisements paid for by Dr. Havsy that said, “Find out if you qualify for a green card.” The DOH claimed that Dr. Havsy violated a law which barred healthcare providers from advertising medical marijuana.

While that claim was technically true, Dr. Havsy’s lawyer, Mark G. Olson, argued that the law should only prevent his client from making false claims.

“The only restrictions that should be placed on professional advertising are to be sure the advertising is not false or misleading,” Olson said. “Other than that, when the government restricts advertising by professionals, it places a chilling effect on the free flow of information, especially on the Internet,” he added.

The DOH did not buy this argument, but luckily for Havsy, Pierce County Superior Court Judge Elizabeth Martin did.

“I find the statute impermissibly overbroad as it chills even informational speech aimed solely at public education,” wrote Judge Martin in her decision. “The result of this statute is that the public cannot be informed by any health care provider … as to whether that provider is even available or willing to perform the required medical exam for the certificate of use.”

Now what makes this case interesting is the fact that this ruling could result in a more liberal interpretation of medical marijuana advertising laws. By protecting Dr. Havsy’s right to discuss medical marijuana in advertisements, the court may be giving its tacit approval of medical marijuana advertising.

Who is to say that television advertisements informing potential patients of the healing effects of medical marijuana could not also count as constitutionally protected speech? Drug companies can advertise dangerous pharmaceuticals with little oversight so it’s not much of a stretch to argue medical marijuana should be offered the same protections.

Naturally, one isolated state court decision doesn’t really count as case law, but a strong foundation is laid one brick at a time. As we move toward the post-prohibition era, the marijuana industry will have to fight piecemeal for the basic rights and protections other industries take for granted.

In states where marijuana is legal, marijuana users don’t always have the right to employment or bearing arms; and marijuana businesses have limited banking access, little to no bankruptcy protection, and even get penalized for paying their taxes on time. This unequal protection under the law is not only bad for business, it also threatens our constitutional rights.

William Sumner, a freelance writer and marijuana journalist, was a staff writer for MJINews from May 2014 through February 2018. You can follow him on Twitter @W_Sumner.

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