Law360 (November 16, 2023, 6:06 PM EST) — A Mississippi medical cannabis company alleged in a new federal lawsuit that state regulations restricting marijuana advertising violate licensed business operators’ First Amendment right to free speech.
In a complaint filed in Mississippi federal court, Clarence Cocroft and his DeSoto County-based company, Tru Source Medical Cannabis LLC, alleged that regulators for the state’s health and revenue agencies overstepped when they implemented a blanket ban on all medical cannabis advertising. The Monday complaint accuses the regulators of “prohibiting business owners like Clarence from engaging in truthful commercial speech to promote their legal businesses.” The complaint continues: “As a result of Defendants’ ban, Tru Source has struggled to reach its desired clientele, cannot promote its products or its location, and has sustained and will continue to sustain significant harm.” The lawsuit names as defendants enforcers with the Mississippi Department of Revenue and Department of Health, which are responsible for regulating different aspects of the Magnolia State’s medical cannabis program. “Whatever Mississippi’s policy goals may be, the Ban prohibits more speech than necessary to accomplish them,” the complaint said. According to the complaint, Mississippi’s medical marijuana law gave regulators discretion to enact rules for marijuana advertising, but they overstepped by prohibiting advertisements in all broadcast, electronic and print media, including banning advertisements on billboards, social media and the internet. “In practice, this means that a legal medical marijuana dispensary may have an internet home page with basic contact information and a storefront sign identifying the business,” the complaint alleges. “In practice, this means that a legal medical marijuana dispensary may not have offsite signs informing potential customers of basic information like a dispensary’s location, products, or prices.” Ari Bargil, an attorney with the libertarian Institute for Justice representing Cocroft, told Law360 on Wednesday: “While it’s easy to focus on the medical cannabis implications, this is a straightforward First Amendment matter. Clarence sells a legal product, and people who sell a legal product have the right to talk about it.” The Mississippi state parties named as defendants did not respond to requests for comment. Cocroft is seeking a declaration that Mississippi’s cannabis advertising ban violates the First Amendment, an injunction blocking enforcement of the ban, attorney fees, costs, expenses and other relief. Mississippians voted in November 2020 to approve Initiative 65, a ballot measure to legalize medical cannabis. But the Mississippi Supreme Court ruled in a 6-3 May 2021 decision that the election law governing ballot referendums in the state has been out of date for nearly 20 years, effectively rolling back the legalization effort. In response, state lawmakers developed a plan to legalize medical marijuana via legislation, ultimately approving the legislation in January 2022, and Gov. Tate Reeves, a Republican, signed the bill into law the following month. In New York, cannabis regulators were recently hit with a similar lawsuit over their advertising rules when marijuana e-commerce and marketing company Leafly accused them of enacting rules that they similarly allege are a First Amendment violation. That case is currently pending in New York state court. Cocroft and Tru Source Medical Cannabis LLC are represented by Ari S. Bargil and Katrin Marquez of the Institute for Justice and Michael T. Lewis of Lewis & Lewis Attorneys. Counsel information for the Mississippi state parties was not available on Thursday. The case is Cocroft et al. v. Graham et al., case no. 3:23-cv-00431, in the U.S. District Court for the Northern District of Mississippi. –Editing by Patrick Reagan.