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Marijuana advertising lawsuit's call for injunction rejected, but case isn't dead yet

Last week, we told you about a lawsuit filed by Westword and High Times magazine related to the State of Colorado's rules for recreational marijuana advertising.

The complaint called for a preliminary injunction against the regulations. But while a U.S. District Court judge has rejected that request, the case remains alive.

Get details and see the documents below.

"We are 100 percent confident of the legality of where we are in terms of taking this business," Westword publisher/Voice Media Group CEO Scott Tobias told us for our previous post. "From the very start of Amendment 64, we committed ourselves to being a reference point to the medical marijuana community, and now the retail marijuana community. We remain committed to strong partnerships and support of these businesses."

As such, Westword attorney Steve Suskin describes the decision to join the suit as "really more a matter of principle than it is a burning need to have a change in the law in order to continue serving the marijuana industry in our advertising function."

The lawsuit itself was assembled by attorney David Lane, who last year represented High Times in a successful challenge to a law that essentially treated marijuana magazines like porn. The complaint attacks Colorado rules stating that recreational marijuana businesses can only advertise in television and radio stations, print publications and more if they can prove their audience is overwhelmingly adult.

Attorney David Lane.
Attorney David Lane.

Here's the language in regard to print businesses: "A Retail Marijuana Establishment shall not engage in Advertising in a print publication unless the Retail Marijuana Establishment has reliable evidence that no more than 30 percent of the publication's readership is reasonably expected to be under the age of 21."

The suit argues that restrictions such as the 30 percent designation, which is also applied to other media outlets, "irrationally single out Retail Marijuana Establishments for more stringent advertising restrictions than those regulating the alcohol industry although the Colorado Constitution calls for the regulation of marijuana 'in a manner similar to alcohol.'" Likewise, the document maintains that "defendants have not and cannot produce sufficient evidence to demonstrate that any of its heavy-handed restrictions at issue directly advance any arguably substantial government interest(s)."

The suit also contends that specified edicts in the Colorado Retail Marijuana Code "violate the First Amendment because they regulate lawful and non-misleading commercial speech concerning Retail Marijuana Establishments."

Why did Judge Marcia Krieger the complaint's call for a preliminary injunction? She believes that neither Westword nor High Times has legal standing to bring such a suit. In her opinion, she writes that "the regulations in question do not address conduct by the Plaintiffs -- who are publishers. Instead, the regulations limit conduct by advertisers -- i.e, retail marijuana establishments. Thus, it is retail marijuana establishments who seek advertising who are directly affected by enforcement of the regulations."

Judge Marcia Krieger.
Judge Marcia Krieger.

Krieger concedes that courts "have allowed publishers to challenge regulations that restrict the speech of putative advertisers if there is a colorable assertion that the regulation had a 'chilling effect' on the potential advertisers." But in her view, the complaint as written doesn't offer "any factual elaboration" that this is the case; she adds, "There is no allegation that any advertiser has been discouraged from seeking to place advertisements with either of the Plaintiffs."

Nonetheless, Krieger is allowing Westword and High Times until March 7 to file evidence that underscores the claims.

What's next for Westword? Attorney Suskin writes via e-mail that "Westword is reviewing the Court's opinion today and considering its options."

Suskin adds that "First Amendment litigation is complex and our litigation counsel, David Lane, remains confident Westword can meet the procedural requirements set forth by the Court for legal standing to challenge this law."

In Suskin's view, "the free speech rights of marijuana retailers and the media must be protected from unreasonable government regulation."

Lane's view? "I think what's unusual about the court's ruling is that if the judge thought the complaint was insufficient, she would have dismissed it. The fact she said 'amend' instead suggests to met that it's a minor technical issue in her mind. And I agree with that: It's a minor technical issue."

Continue to read Judge Krieger's rejection of the motion for a preliminary injunctions and other court documents.

Here's the order denying the preliminary injunction, followed by the original complaint and motion, plus a supporting brief.

Marijuana Advertising Order Denying Preliminary Injunction

Marijuana Advertising Complaint

Marijuana Motion for Preliminary Inunction and Supporting Brief

Send your story tips to the author, Michael Roberts.

More from our Marijuana archive circa June 2013: "Marijuana magazines as porn rule declared unconstitutional by state attorney general."


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