By Marguerite Arnold
In what is likely to be a recurring theme for the next few years as federal law catches up with state reality, the United States Postal Service has become the next federal agency to enter the legalization fray with a misstep likely to help clarify rules for the new industry.
On Nov. 27, 2015, the Postal Service issued a memo claiming that newspapers would violate federal law if they mailed publications containing advertisements for marijuana, even if legal under state law.
The reason? The Postal Service falls under federal jurisdiction. And marijuana, no matter the declarations of at least two presidential candidates now, remains a Schedule I drug.
In a memo sent to Northwest newspapers including in Portland, Oregon, and Long Beach, Washington, the Postal Service pointed out that it was illegal “to place an ad in any publication with the purpose of seeking or offering illegally to receive, buy, or distribute a Schedule I controlled substance … . If an advertisement advocates the purchase of clinical marijuana through a Medical Marijuana Dispensary, it does not comply [with federal law].”
“For our weekly in Washington state, Chinook Observer, it’s a large deal,” said Steve Forrester, the president of the media group which publishes the Observer and who received a copy of the memo. Forrester reached out to Sen. Ron Wyden, D-Ore., and Rep. Earl Blumenauer, D-Ore., whose offices have since sought clarification from the Postal Service on what appears to be, in the words of their staff members at least, “an outdated interpretation of the law.”
The news also caused a considerably unpleasant buzz within the marijuana industry, particularly those with an interstate reach and those who serve both this and the tobacco industry. Vape distributors are a good example of the kind of marijuana sector business that is on the front lines of this kind of skirmish precisely because of the cross-over applications of their product.
“This is the latest obstacle in the legal grey area maintained by federal cannabis prohibition,” said Dawn Roberts from O.penVAPE. “As a responsible brand in the cannabis space, O.penVAPE stays on top of all the regulations regarding cannabis advertising. We navigate rapidly evolving guidelines in all nine states we operate in.”
“The continued contradictions coming from state and local officials is extremely confusing for the small business owners that make up the majority of the cannabis space,” said James Zachodni, Dope Magazine’s Chief Branding Officer. “For example in the WA State Liquor and Cannabis Board’s FAQs it asks ‘May I use direct mail to households and inserts delivered via the Seattle Times and other publications? Yes. Inserts may not contain coupons.’ As a business owner this tells me that it’s OK to publish in newspapers like The Seattle Times which we all know is directly delivered using the USPS.”
In fact, the Washington state guidelines state that mainstream, traditional print publications may also include such ads as long as they are not marketed toward children or those under the age of 21.
In this case, what is particularly irritating to not only the newspaper industry but the burgeoning marijuana one is that marijuana has been legal in Oregon for medical purposes since 1998, and its recreational market is just beginning. It is also sandwiched between Washington and Northern California, two more states with booming marijuana businesses not to mention cross-state publications serving all three states.
However marijuana advertising, in all of its forms, is an area just like banking that has slowly crept into the forefront as the marijuana industry establishes itself with an authority that cannot be beaten back. Because of this, there are also still all sorts of strange wrinkles appearing as reform efforts continue.
Many in the so-called “weed-tech” space, including some of the earliest pioneers in dispensary advertising, like Weedmaps, have been confronting federal advertising restrictions on all their fronts, in creative ways. For example, last year, Weedmaps bought ad space overlooking Times Square belonging to CBS only to have the network pull the pre-paid ad at the last minute on April 1, 2014. CBS also cited federal restrictions.
That stand lasted for as long as the spring. Last summer, The New York Times made history by allowing Leafly to buy a full page ad in the publication after a weeklong series supporting legalization. Despite the fact that The New York Times, the so-called “paper of record,” has one of the largest print distribution networks in the world, with much of it by mail, the Postal Service did not object.
It is also unclear at this juncture what caused the Postal Service to issue the memorandum, other than the fact that Oregon is on the cusp of creating a large and booming recreational state market.
However, the reason that both TV advertising and the internet have been so attractive as alternative advertising outlets is because they were the only other alternative to the U.S. mail system. Particularly over the last year, it has also proved far easier to begin to make the case that marijuana-friendly applications, which accept paid advertising, can operate in cyberspace if they find ways to stay compliant with state law.
It may be, however, that the real reason that the Postal Service decided that this was the best time to issue a memo on the topic is because the advertising arena is one that is not only an issue at the front lines but also one likely to be toppled sooner rather than later by the onward march of legalization.