Pubdate: Thu, 04 Aug 2016
Source: Portland Mercury (OR)
Column: Ask a Pot Lawyer
Copyright: 2016 The Portland Mercury
Author: Vince Sliwoski


You Can Make a Pot Commercial, but There Are Hoops to Jump Through

I'm filming a pot commercial! I can do that, right?

YES, YOU CAN definitely make a pot commercial. Before you start, 
though, you should study up on the rules for pot commercials and pot 
ads in general. You should also note that distribution of your ad 
might be limited, depending on your approach. I'll explain.

Back when Measure 91 passed, you and your friends assigned the Oregon 
Liquor Control Commission (OLCC) the especially tricky job of 
regulating pot ads. This job is particularly tough because our state 
constitution contains the broadest speech protections in the nation 
(resulting in a naked bike ride, tons of strip clubs, and no campaign 
finance restrictions). So although OLCC latitude in this area may be 
cramped, the agency took a whack at it. They came up with a few rules 
you might have expected; others may surprise you.

As to the obvious, your pot ad cannot attract minors, a la Joe Camel, 
or promote excessive use. It also cannot promote illegal activity 
under Oregon law. Less obviously, the ad cannot claim that 
recreational weed has curative or therapeutic effects, or even 
"encourage the use of marijuana because of its intoxicating effect." 
Did you catch that? Your ad must not promote weed use... for getting high.

The rules also prohibit showing consumption, which the agency tells 
me means "actual consumption." Here we find gray areas, which often 
mean lawsuits but are impossible to avoid in this type of rulemaking. 
Clearly your ad cannot show someone hitting a joint, but what about 
holding one? Lit versus unlit? What about a kindly old gent on a 
porch with a weed patch, that may or may not be activated? Because 
this is often a "know it when we see it" analysis, you would be wise 
to clear any borderline ideas with the state before spending money.

Another notable rule provides that one cannot place an ad-radio, 
internet, billboard, whatever-without "reliable evidence that no more 
than 30 percent of the audience... is [probably] under the age of 
21." How the 30 percent metric would be gauged on many platforms is 
an open question, and it's only a matter of time before someone trips 
on this rule and we see some legal action. As of today, Portland is 
lousy with pot billboards. Apparently the ones that get to stay up 
are far enough from schools.

Even if you follow the OLCC rules, it remains unlikely that your 
commercial will air on television. The Federal Communications 
Commission (FCC) regulates TV broadcasters, and while no FCC rule 
expressly prohibits televised weed ads, the agency renews licenses 
annually based on whether stations have served the "public interest." 
Last year a stylish pot ad was scheduled on a Colorado affiliate to 
much anticipation, but the affiliate chickened out at the very last second.

In all, solid advice is to read the rules closely, clear any close 
calls, and have fun making your ad. Just don't expect to buy a slot on KATU.
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MAP posted-by: Jay Bergstrom