Marijuana advertising lawsuit: State should treat pot more like alcohol, Westword attorney says

Earlier this week, Westword and High Times magazine filed a lawsuit against the State of Colorado in regard to regulations that restrict recreational marijuana advertising to publications that are deemed "adult" by a state-mandated formula. Attorney Steve Suskin, who represents Westword on behalf of the paper's parent company, Voice Media Group, says the complaint was filed because the state's current rules could violate the First Amendment. Meanwhile, the paper's publisher emphasizes that when it comes to such ads, Westword is very much open for business.

"We are 100 percent confident of the legality of where we are in terms of taking this business," says Scott Tobias, who is also the CEO of Voice Media Group, a company that owns publications in Los Angeles, New York and other major U.S. cities in addition to Denver. "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 for the lawsuit, it 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. We've included the entire document below, along with a motion for a preliminary injunction and supporting brief. But in general, the complaint attacks Colorado rules stating that television and radio stations, print publications and more can only accept such ads if they can prove their audience is overwhelmingly adult.

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.'" The document also 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)."

As such, the suit 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."

According to Westword attorney Suskin, the decision to join the suit "is 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 law is set up on the broad concept, at least as it relates to marketing and advertising, that none of these messages reach children," he continues. "I suppose that's the state's altruistic goal, and frankly, the demographics for Westword probably meet the strict criteria in terms of the percentage of readers who are over the age of 21. But we thought it was important that it be clear the regulations that have been promulgated by the state are in conflict with Westword's First Amendment rights in terms of free speech.

"That's really what the complaint and the motion for preliminary injunction are all about. It's important that we not create a precedent or go down a slippery slope, where commercial speech restrictions are enacted that violate Colorado citizens' First Amendment rights."

Continue for more about the marijuana advertising lawsuit, including two documents.
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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts

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