Yesterday, Attorney General Jeff Sessions issued a one-page memo (here) advising Federal prosecutors to use their discretion in pursuing marijuana prosecutions – even in states where state law has made marijuana legal for either medical or recreational use. Even though some states have removed state law restrictions on the sale or use of marijuana, marijuana remains illegal under Federal law as we wrote here when the FDA, under the Obama administration, refused to remove the drug from “Schedule 1” – the category of drugs most restricted under Federal law. As we wrote here, because marijuana is illegal under Federal law, and broadcasters are Federal licensees, running advertising for a substance that is generally illegal to use or possess under Federal law poses real risks for broadcast licensees. Yesterday’s action by the DOJ, essentially repealing guidance given to Federal prosecutors not to pursue marijuana cases where there was no abusive conduct (e.g. no sales to children, no attempts to sell outside states where the drug is legal under state law, no cooperation with international drug dealers, etc.), does nothing to lessen the risk to broadcasters of running such ads, and in fact likely ups those risks.

Some broadcasters may have taken hope from a decision of a federal appeals court from 2016 finding criminal prosecutions by the Department of Justice of entities and individuals who were complying with state laws decriminalizing medical marijuana were barred by a rider to a federal appropriations bill. Some saw this decision as a broad statement that the federal government would not be enforcing its marijuana laws in any context. But, as we wrote here, the bar on the spending of any money on prosecutions applies only to the DOJ (not to other federal agencies such as the FCC) and only to medical marijuana. Moreover, the decision practically quoted the same warning that I have included in my articles on the topic – the rider does not change the underlying law declaring the sale and distribution of marijuana illegal under federal law. Moreover, the Court observed that administrations can change (as they did), changing prosecution priorities. This rider can also expire, increasing the potential for prosecutions in the new atmosphere at the DOJ. Given the DOJ decision yesterday, broadcasters need to remain very cautious about marijuana ads of any sort, and seek counsel on any such ads that they are considering.