Businesses selling medical marijuana in Mississippi cannot advertise because marijuana remains illegal under federal law, a U.S. appeals court has ruled.
Mississippi Department of Health regulations barring medical marijuana companies from advertising in any media withstand scrutiny because of the federal law, even though Mississippi lawmakers made medical marijuana legal in the state in 2022, judges on the U.S. Court of Appeals for the Fifth Circuit said.
“The Controlled Substances Act (CSA) prohibits activities involving mari[j]uana—including activities involving medical mari[j]uana—nationwide. And the Supremacy Clause means that the CSA is the law in Mississippi regardless of what state law might say. Mari[j]uana is therefore illegal in Mississippi, and the state faces no constitutional obstacle to restricting commercial speech relating to unlawful transactions.”
The rest of the panel that was assigned the appeal was formed by U.S. Circuit Judges Edith Brown Clement and Stephen A. Higginson.
Clarence Cocroft and his business, Tru Source Medical Cannabis, sued the state in 2023 over the regulations, arguing they violated their constitutional rights.
Cocroft’s lawyers and state attorneys both agreed that the test that should be applied by the courts stemmed from the 1980 U.S. Supreme Court decision in a case analyzing the constitutionality of restrictions on commercial speech.
Commercial expression is protected by the First Amendment only if it concerns “lawful activity,” justices said at the time.
Mills pointed to a 2016 Montana Supreme Court that also turned down a challenge to state law barring medical marijuana providers there from advertising since, because of federal law, the businesses’ speech did not concern lawful activity.
“This court does not believe that the Montana Supreme Court’s rationale is difficult to understand or explain since it is very difficult to argue that something which remains illegal under the supreme law of the land constitutes ‘lawful activity,’” Mills said.
The Mississippi attorney general’s office praised the court decision for upholding “Mississippi’s reasonable restrictions on advertising for medical marijuana dispensaries by print, broadcast, and other mass communications,” said the office spokesperson, MaryAsa Lee.
“Upholding this ban makes it incredibly difficult for me to find potential customers and to educate people about Mississippi’s medical marijuana program,” Cocroft said in a statement. “I remain committed to continuing this fight so my business can be treated the same as any other legal business in Mississippi.”
The Institute for Justice, a nonprofit law firm representing Cocroft, said that it might appeal the ruling to the U.S. Supreme Court.
