Push to Ease FCC Barriers to Broadcast Cannabis Ads Faces Uncertain Future

Telecom-focused congressional Democrats remain supportive of the proposal but are uncertain whether they will be able to keep it in an FY 2023 federal appropriations omnibus measure leaders see as a priority for the lame-duck session (see 2211300074). Republicans are mulling their position on the issue, before the party's transition back to a House majority in January. Broadcast industry officials told us they believe the proposal has a much better shot during the lame duck than it does in 2023.

House Appropriations Financial Services Subcommittee Chairman Mike Quigley, D-Ill., told us before the August recess he intended to "have a discussion" with Senate Appropriations Committee leaders about including the pro-cannabis ad language in a compromise FY23 appropriations measure, but he said in an interview last week he's uncertain whether it will be included in the package. Quigley noted the Senate panel's July draft measure dealing with FCC funding didn't include such language and there has been a push to not include anything in a lame-duck bill that would draw any lawmakers' objections amid the end-of-year time crunch. He intends to press for the rider's reintroduction during the FY 2024 appropriations cycle in talks with the incoming GOP majority, saying it's about ensuring "fairness" for broadcasters given cannabis ads are legal on other media.

Senate Appropriations Financial Services Subcommittee Chairman Chris Van Hollen, D-Md., told us he's "not aware of" any push to include the cannabis rider in the chamber's FY23 FCC funding measure, but it's something he will "take a look at" because it "sounds like something I'd support. I've been in favor of allowing states to develop their own laws and policies on marijuana," so allowing broadcasters to air ads where those products are legal would fit into that construct. Maryland voters approved a ballot measure 67%-33% in November legalizing recreational marijuana use and sales. An "explanatory statement" accompanying Senate Appropriations’ FCC funding proposal includes committee recommendations on 13 telecom policy matters but nothing on cannabis ads.

Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., said the issue remains ripe for congressional action either as part of appropriations or via another vehicle. Lujan filed the Secure and Fair Enforcement Advertising Act (S-4622) in July, which mirrors the HR-8294 language’s intent in an expanded form (see 2207260048). Lujan sees S-4622 as connected to the larger push to “deschedule marijuana,” which would allow “for banking, advertising and other things of that nature.” Lujan “will work with my colleagues to look for ways to get this adopted” due to the growing “number of states have come forward with legalization” of cannabis use “in one form or another.”

Senate Communications ranking member John Thune, R-S.D., and House Appropriations Financial Services ranking member Steve Womack, R-Ark., sidestepped taking a position on whether the FCC should allow cannabis advertising. Thune said he would “have to think about” whether he will support the ad rider due to continued discrepancies in how states treat cannabis use. “At some point we’ll have to have a national conversation” on whether to legalize cannabis use and how the FCC handles advertising of those products would be part of the discussion, he said.

“It’s too early to tell” whether Republicans will support bringing back the ad rider during the FY24 appropriations cycle regardless of whether it’s included in an FY23 omnibus, Womack said: “We’ll sort through a lot of those issues we dealt with” in FY23 “in the context of the incoming House majority, but there’s plenty of time” to do that after January. House Appropriations ranking member Kay Granger, R-Texas, criticized the rider when the committee was considering the Financial Services funding bill, but panel Republicans ultimately attempted to make alterations to the language rather than seek its removal (see 2206270061).

'Never Say Never'

It’s likely to be tougher to move any such legislation in 2023 even though the GOP will hold only a slim House majority, broadcast industry officials said. New York State Broadcasters Association President David Donovan believes efforts to revisit the rider in 2023 “would be problematic,” but he “would never say never.” It “would be better to get this done now,” Donovan told us. He’s hopeful the rider can make it into the FY23 omnibus, but “when you get to the lame duck it can get complicated.”

The proposal should still have a chance during the next Congress because cannabis advertising isn’t a partisan issue, said Wilkinson Barker broadcast attorney David Oxenford. Numerous red states have legalized cannabis, he said. Roughly half the states have legalized either medical or recreational marijuana, Donovan said.

Broadcasters need the legislation because without it they can’t be certain that carrying marijuana ads won’t have consequences for their licenses, Oxenford said. If a broadcaster runs an ad for legal cannabis, the FCC would theoretically be able to take action against it, he said. Even if the commission issued guidance that it wouldn’t do so, a new chair could later reverse that policy. Attorney General Jeff Sessions in 2018 reversed the Obama administration DOJ’s policy not to enforce federal marijuana laws, Oxenford pointed out. “All we’re asking is to be treated as other media are” given that cable channels, websites and billboards are all able to carry such ads in states that have legalized marijuana without a problem, Donovan said.

"For too long, local broadcasters have been stuck in a regulatory purgatory because of conflicting federal and state cannabis laws,” an NAB spokesperson said: “NAB supports legislation that would finally level the playing field and create necessary regulatory certainty by allowing broadcasters to receive equal treatment for cannabis advertising that many other forms of media have enjoyed for years.”

The prospect of increased amounts of broadcast ads for cannabis should raise concerns about how the products are marketed, said Elizabeth D'Amico, Rand Corporation senior behavioral scientist. “Cannabis is often marketed very differently than alcohol,” she said: Cannabis is sometimes marketed as a medicine for conditions for which there's no evidence it's a useful treatment, she said. The public is also much more aware of possible harms from alcohol than they are for cannabis products, D’Amico said. “People haven’t thought through all the ramifications of how these products are marketed,” she said. Smart Approaches to Marijuana CEO Kevin Sabet warned last week “the legalization and commercialization of marijuana is threatening to erase” what had been a decades-long decrease in use of the substance.