Federal drug laws may imperil newspaper advertising in legal marijuana states

New guidance from U.S. Attorney General Jeff Sessions could affect newspaper ads for legal marijuana sales in states that permit sales either for medicinal and recreational purposes.

Marijuana remains a controlled substance under federal law. Under postal laws, newspapers with marijuana advertising would not be able to be mailed.

But until recently, the federal government took a hands-off approach in prosecuting the various marijuana laws in states where sales are legal, except in limited circumstances such as sales directed to minors. So, U.S. Postal Service General Counsel Thomas Marshall advised post offices that even though the law prohibited newspapers in the mail from carrying marijuana ads, the Postal Service would not enforce the law by stopping the mail. Postal officials were simply required to file a report that mail with potentially illegal advertising had been entered, and these reports were being referred to the U.S. Department of Justice.

Now Sessions reversed course in federal enforcement. He issued a statement last week that his department would leave enforcement decisions up to the U.S. attorneys in the states.

Congress intervened to maintain the status quo by prohibiting expenditure of funds for enforcement in legal marijuana states, but that law expires on Jan. 19. It may be re-enacted in upcoming federal appropriations bills. But if the Congressional restriction lapses, U.S. attorneys would have the power to prosecute advertisers who “cause to be placed” advertising in newspapers for the sale of marijuana. Because the Postal Service monitoring presumably produced a volume of reports on newspapers carrying such ads, advertisers could be easily identified and be at risk if the Jan. 19 ban on enforcement is not renewed.

The law applies to newspapers delivered by any means, not just newspapers in the mail. But for mailed copies, USPS may choose to use its authority to stop the mail. Newspapers with marijuana advertisers’ schedules planned for Jan. 19 and beyond should consider placing these on hold until the legal status is resolved.

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