Update below: Last week, our William Breathes noted that a Denver City Council-proposed outdoor medical marijuana advertising ban is up for public discussion tonight -- but advocate Rico Colibri isn't waiting. During the wee hours, he sent an open letter to the council (read it below) threatening to sue if changes to the ordinance's language aren't made. In the letter, Colibri, president of the Cannabis Alliance for Regulation & Education (CARE), was one of the main proponents behind Initiative 70, one of three MMJ ballot proposals that failed to make the 2012 ballot, expresses concern that the council appears to have mainly consulted with medical marijuana industry groups to the exclusion to organizations, like his, that are devoted to patient advocacy.
Not that Colibri is dead-set against any advertising restrictions: He acknowledges that MMJ sign spinners near schools might be inappropriate. But he's concerned that the broadness of the language "violates equal protections and limits a patients ability to be properly informed about the services offered in a given medical marijuana establishment." He also suggests that the ordinance might outlaw medical marijuana conventions and conferences.
Just as important, he sees no evidence that the presence of medical marijuana advertising has led to an increase in pot use by teenagers -- the demographic councilwoman Debbie Ortega initially set out to protect when initially suggesting that advertising be banned within 1,000 feet of schools, parks and daycare centers.
Colibri concludes with this:
We implore the Denver City Council to reconsider the wording in your current draft to avoid unnecessary litigation which would be both a waste of tax payer dollars and would result in the entire ordinance being struck down in court. Please be advised we have copied in our attorney.... Passage of the ordinance as currently written leaves us no alternative but to file suit.
Update: A short time ago, we reached CARE's Rico Colibri, who was en route to speak with attorney Andrew Reid -- who's handling a challenge to state medical marijuana regulations -- about the Denver City Council's proposed medial marijuana outdoor advertising ban. He adds some detail to the letter to council members on view below.
In Colibri's view, the proposal is "a blatant violation of the First Amendment. You can't target one group of businesses for no compelling reason just because you hate medical marijuana or think sign spinners are inappropriate."
Regarding the latter, Colibri's had such thoughts on occasion -- like one time when he saw a female spinner near a school who looked to be about sixteen years old. "We think medical marijuana businesses need to be good stewards for the communities they're in," he allows.
At the same time, he detects a larger purpose behind the advertising ban, which is supported by the Medical Marijuana Industry Group, among others.
"There's been an attempt at consolidation" of dispensaries, he maintains. "And this is another thing to push out mom-and-pop businesses and reduce the options for patients. It's telling mom and pops, 'You can't even afford to advertise, so you'll have to sell your business.' And it seems like local authorities are cooperating in those efforts."
Outdoor advertising for dispensaries represents "no real threat," Colibri believes, "other than they find it annoying and everyone is sick of medical marijuana at this point."
At the end of the day, though, "these are patients," Colibri goes on. "They're human beings. People keep thinking about it as only businesses and advertising. But everybody's forgotten there are people with debilitating conditions who use this medicine."
One more thing: Colibri says if lawsuits must be filed in this case, he'd like to target each member of the city council individually, as opposed to suing them collectively. As he puts it, "Politicians need to understand they can all get an attorney, and everyone can join in the fun."
Page down to read the proposed ordinance and Colibri's "Notice of Litigation" to Denver City Council members.
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"Notice of Litigation" letter to Denver City Council members:
Dear City Council Members
We are writing you concerning the hearing on the proposed bill banning medical marijuana outdoor advertising. We wish to bring to your attention a few points of concern from a MMJ patient advocacy point of view. First and foremost when drafting a bill it would be advisable to speak to at least one nonprofit patient organization and not simply rely on MMJ industry groups and medical marijuana attorneys both of whom tend to have very different concerns than the every day patient struggling to manage their day to day lives and health issues. Please feel free to contact us in the future if you ever need non-industry feed back on any other MMJ related issues. We understand the need and support the idea of regulating certain types of MMJ related advertising, specifically advertising that is near schools and/or the often inappropriate use of sign spinners. However we do take issue with section 3 in the proposed bill for a number of reasons and have highlighted some of the problematic text, but we will simply touch on a few issues in this message.
"(3) Except as otherwise provided in this subsection (3), it shall be unlawful for any person licensed under this article or any other person to advertise any medical marijuana or medical marijuana-infused product anywhere in the city where the advertisement is visible to members of the public from any street, sidewalk , park or other public place, including advertising utilizing any of the following media: any billboard or other outdoor general advertising device as defined by the zoning code; any sign mounted on a vehicle, any hand-held or other portable sign; or any handbill, leaflet or flier directly handed to any person in a public place, left upon a motor vehicle, or posted upon any public or private property without the consent of the property owner. The prohibition set forth in this paragraph (3) shall not apply to:
(i) Any sign located on the same zone lot as a medical marijuana center which exists solely for the purpose of identifying the location of the medical marijuana center and which otherwise complies with the Denver Zoning Code and any other applicable city laws and regulations; or
(ii) Any advertisement contained within a newspaper, magazine, or other periodical of general circulation within the city; or
(iii) Advertising which is purely incidental to sponsorship of a charitable event by a medical marijuana center or a medical marijuana- infused products manufacturer."
One of our primary concerns is unless such a ban is applied to all medications this ordinance is specifically targeting medical marijuana patients exclusively which we feel violates equal protections and limits a patients ability to be properly informed about the services offered in a given medical marijuana establishment. Unlike a pharmacy a medical marijuana patient has to go through a lengthy registering process when first entering a medical marijuana center part of which almost always includes signing a HIPAA waiver. Under the proposed ordinance a patient would be forced to first enter the business and sign away protections for their sensitive medical information simply to gauge whether or not they found the pricing to be viable for their budgets which is incredibly unreasonable and unfair. We request that section (i) be amended to read;
"which exists solely for the purpose of identifying the location of the medical marijuana center and provide basic pricing information"
This would allow patients to assess whether or not they wish to go through the process of waiving protections to their sensitive medical information before entering the establishment. which is especially important for disabled and indigent patients. Another point of concern is the general vagueness of this section;
"or any other person to advertise any medical marijuana or medical marijuana-infused product anywhere in the city"
This could apply to patients wearing MMJ or simply MJ related T-shirts in a public place which would be a clear violation of first amendment rights. We request that you strike "or any other person" and amendment this section to read;
"to advertise any medical marijuana or medical marijuana-infused product anywhere in the city"
We are also very concerned this could apply to any and all medical marijuana conventions and/or events. Denver has hosted several successful medical marijuana conventions and events in the past and many current and future patients attend these events and find them extremely useful for educational, networking and vendor reviewing purposes. Most of these events are funded by selling booths to MMJ related businesses and to my knowledge most of these events were a for profit affair and this ordinance would essentially remove the funding for these events. We request that section (ii) be amendment to read;
"Advertising which is purely incidental to sponsorship of an event by a medical marijuana center or a medical marijuana- infused products manufacturer."
We have heard the argument that such an advertisement ban might be lawful because of the recent tobacco advertisement ban rulings. We respectfully disagree and point to the fact that tobacco is not a lawful medical treatment under state law and as such does not have the same level of protections for free speech as does medical treatments. As we are all aware, the First Amendment guarantees a freedom of speech to individuals which can only be abridged by government when there is a "compelling" interest.
To abridge even commercial speech, there are standards -- the government must show that it has a "substantial" interest" which would include, for example, the protection of public safety. Therefore, the question becomes this -- is there a "substantial" interest on the part of government to abridge this commercial speech in order to protect the public safety? In other words, what evidence is there that a threat to public safety exists? As indicated in this recent study there is no correlation between lawful medical marijuana businesses and teen marijuana use.
In any case, if there is a concern that such advertisements result in a increase of members of the public deciding to obtain a medical marijuana recommendation from a physician, well that is also a form of protected free speech as demonstrated in these two recent rulings.
Both Judges ruled ruled that the doctors' actions were lawful under the Colorado constitution and also protected by the First Amendment. Please take note that these Doctors were providing for profit medical marijuana related services. In light of these rulings we do not believe this ordinance as currently written could with stand a legal challenge in court. After all, the few words contained in a medical marijuana advertisement are hardly a compelling threat to public safety, and even if the Denver city council is convinced, would a judge be convinced?
In the end, one has to ask oneself, is there a greater chance of harm in the event a member of the public feels compelled to get a medical marijuana recommendation based on the content of an medical marijuana advertisement that contains pricing information etc..., or is the greater chance of harm occurring when the speech of all ready heavily regulated businesses about their own products is chilled to the point that educating patients about treatment options and/or providing pricing information in public forums doesn't take place? We implore the Denver city Council to reconsider the wording in your current draft to avoid unnecessary litigation which would be both a waste of taxpayer dollars and would result in the entire ordinance being struck down in court. Please be advised we have copied in our attorney whose office had successfully litigated one of the doctor's cases mentioned in the linked article, passage of the ordinance as currently written leaves us no alternative but to file suit.
More from our Marijuana archive: "Marijuana initiatives: Why three alternatives to Amendment 64 didn't make ballot."