Recreational marijuana is sold at High Country Healing in Silverthorne on Jan. 1. (Kathryn Scott Osler, Denver Post file)

Restrictions on pot ads violate First Amendment (editorial)

We have been strong supporters of tough rules around recreational marijuana to keep the industry on a short leash and in check.

But rules written last year by the Colorado Department of Revenue’s Marijuana Enforcement Division for retail marijuana advertising are unconstitutional and have been ripe for a court challenge, which came last week when the publishers of High Times and Westword filed suit in federal court.

Under the published rules approved in September, marijuana advertising is prohibited in almost every medium that has an audience of at least 30 percent minors.

That means no ads on television, print, radio, Internet or billboards that could be seen by people under 21.

The rules banned marijuana flyers or leaflets handed out to the general public, pop-up ads on the Web, mobile ads or apps that cannot be blocked, and sponsorship of events where the audience is comprised of 30 percent or more minors.

And no ads anywhere outside of Colorado.

The pot advertising rules were built on protocols loosely followed by the alcohol industry, which in 2003 adopted “voluntary standards” to refrain from advertising to audiences with 30 percent or more minors.

Note that the alcohol industry’s rules are voluntary, not mandated in statute or by federal law.

Sure enough, beer, wine, spirits and liquor store advertisements are everywhere: on billboards, on TV, on the Internet and in print publications.

Imagine the hue and cry from the alcohol industry were federal and state laws changed to restrict beer ads during televised football games.

Amendment 64, which Colorado voters in 2012 put in the constitution, says marijuana should be regulated “in a manner similar to alcohol.” But advertising rules for pot and booze are clearly not comparable. And the First Amendment generally protects commercial speech as long as it concerns a lawful activity and is not misleading.

We’d obviously be outraged by pot ads in publications primarily aimed at kids — or ads for booze, for that matter. But no such publication would accept those ads and expect to survive the ensuing uproar.

The state can combat youthful marijuana use in ways that are far more effective and direct than violating the First Amendment.

The state ad rules should be changed, asking pot stores to adopt “voluntary standards” just like the alcohol industry.

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