Marijuana advertising lawsuit's call for injunction rejected, but case isn't dead yet

Last week, we told you about a lawsuit filed by Westword and High Times magazine related to the State of Colorado's rules for recreational marijuana advertising.

The complaint called for a preliminary injunction against the regulations. But while a U.S. District Court judge has rejected that request, the case remains alive.

Get details and see the documents below.

"We are 100 percent confident of the legality of where we are in terms of taking this business," Westword publisher/Voice Media Group CEO Scott Tobias told us for our previous post. "From the very start of Amendment 64, we committed ourselves to being a reference point to the medical marijuana community, and now the retail marijuana community. We remain committed to strong partnerships and support of these businesses."

As such, Westword attorney Steve Suskin describes the decision to join the suit as "really more a matter of principle than it is a burning need to have a change in the law in order to continue serving the marijuana industry in our advertising function."

The lawsuit itself was assembled by attorney David Lane, who last year represented High Times in a successful challenge to a law that essentially treated marijuana magazines like porn. The complaint attacks Colorado rules stating that recreational marijuana businesses can only advertise in television and radio stations, print publications and more if they can prove their audience is overwhelmingly adult.
Attorney David Lane.
Here's the language in regard to print businesses: "A Retail Marijuana Establishment shall not engage in Advertising in a print publication unless the Retail Marijuana Establishment has reliable evidence that no more than 30 percent of the publication's readership is reasonably expected to be under the age of 21."

The suit argues that restrictions such as the 30 percent designation, which is also applied to other media outlets, "irrationally single out Retail Marijuana Establishments for more stringent advertising restrictions than those regulating the alcohol industry although the Colorado Constitution calls for the regulation of marijuana 'in a manner similar to alcohol.'" Likewise, the document maintains that "defendants have not and cannot produce sufficient evidence to demonstrate that any of its heavy-handed restrictions at issue directly advance any arguably substantial government interest(s)."

The suit also contends that specified edicts in the Colorado Retail Marijuana Code "violate the First Amendment because they regulate lawful and non-misleading commercial speech concerning Retail Marijuana Establishments."

Why did Judge Marcia Krieger the complaint's call for a preliminary injunction? She believes that neither Westword nor High Times has legal standing to bring such a suit. In her opinion, she writes that "the regulations in question do not address conduct by the Plaintiffs -- who are publishers. Instead, the regulations limit conduct by advertisers -- i.e, retail marijuana establishments. Thus, it is retail marijuana establishments who seek advertising who are directly affected by enforcement of the regulations."

Judge Marcia Krieger.
Krieger concedes that courts "have allowed publishers to challenge regulations that restrict the speech of putative advertisers if there is a colorable assertion that the regulation had a 'chilling effect' on the potential advertisers." But in her view, the complaint as written doesn't offer "any factual elaboration" that this is the case; she adds, "There is no allegation that any advertiser has been discouraged from seeking to place advertisements with either of the Plaintiffs."

Nonetheless, Krieger is allowing Westword and High Times until March 7 to file evidence that underscores the claims.

What's next for Westword? Attorney Suskin writes via e-mail that "Westword is reviewing the Court's opinion today and considering its options."

Suskin adds that "First Amendment litigation is complex and our litigation counsel, David Lane, remains confident Westword can meet the procedural requirements set forth by the Court for legal standing to challenge this law."

In Suskin's view, "the free speech rights of marijuana retailers and the media must be protected from unreasonable government regulation."

Lane's view? "I think what's unusual about the court's ruling is that if the judge thought the complaint was insufficient, she would have dismissed it. The fact she said 'amend' instead suggests to met that it's a minor technical issue in her mind. And I agree with that: It's a minor technical issue."

Continue to read Judge Krieger's rejection of the motion for a preliminary injunctions and other court documents.

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Cognitive_Dissident topcommenter

The A64 people may not have a clue, but David Lane does.

DonkeyHotay topcommenter

LOL! ... Epic FAIL !!

Wasteweed has NO STANDING to sue, since 

1) the MMED advertising regulations apply to Pot Dispensaries, not the media, and 

2) Wasteword isn't even in the 30% under 21 yrs old demographic anyway

Furthermore Commercial Advertising isn't "free speech", hence the legitimate government restrictions on advertising Tobacco. 

Wasteweed is free to continue to publish all manner dreck and propaganda for marijuana via their stories and blogs, and can accept any/all advertising that any Dispensary cares to purchase.

KathleenChippi topcommenter

@Cognitive_Dissident A64 was written so attorneys get to be paid for the next 2 decades arguing what it meant while people get arrested and lose their kids, jobs, housing, etc....

DonkeyHotay topcommenter

@Cognitive_Dissident  ... David Lane knows that the A64 idiots gave the Government way too much REGULATORY POWER and he knows this lawsuit and Wasteword have NO STANDING ... which is exactly what the judge ruled.

Wonder how much $$ Wasteweed spent on this loser lawsuit?

Cognitive_Dissident topcommenter

@DonkeyHotay  If Filburn could be forced to grow for the warring federal government because not growing it was "affecting interstate commerce," then this regulation is "affecting" Westword's bottom line. The government is expert in hypocrisy.

DonkeyHotay topcommenter

             *** Hey Bitches! -- REGULATION WORKS !! ***

In April 1970, Congress passed the Public Health Cigarette Smoking Act banning the advertising of cigarettes on television and radio starting on 2 January 1971.

The Virginia Slims brand was the last commercial shown, with "a 60-second revue from flapper to Female Lib", shown at 11:59 p.m. on 1 January during a break on The Tonight Show.

Smokeless tobacco ads, on the other hand, remained on the air until a ban took effect on 28 August 1986.

Recently, even further restrictions took effect under the newly enacted Family Smoking Prevention and Tobacco Control Act. Effective 22 June 2010, the new regulations prohibit tobacco companies from sponsoring sports, music, and other cultural events. Also, tobacco companies can no longer display their logos or advertise their products on T-shirts, hats, or other apparel. 

After 1971, most tobacco advertising was done in magazines, newspapers, and on billboards. Since the introduction of the Federal Cigarette Labeling and Advertising Act, all packaging and advertisements must display a health warning from the Surgeon General. In November 2003, tobacco companies and magazine publishers agreed to cease the placement of advertisements in school library editions of four magazines with a large group of young readers: Time, People, Sports Illustrated, and Newsweek.

In 1997, the Tobacco Master Settlement Agreement bans outdoor, billboard, and public transportation advertising of cigarettes in 46 states. It also prohibits tobacco advertising that targets young people, the usage of cartoons (such as the Marlboro Man or Joe Camel) in particular.

Most recently, signed into law by President Barack Obama, the Tobacco Control Act became active on 22 June 2010. This act not only placed new restrictions on tobacco marketing but also extensive constraints concerning the circulation of cigarettes and smokeless tobacco to minors. 

Newly effective with this act, “audio advertisements are not permitted to contain any music or sound effects, while video advertisements are limited to static black text on a white background. Any audio soundtrack accompanying a video advertisement is limited to words only, with no music or sound effects.” 

      *** Hey Wasteweed, how's that REGULATION Feel Now ?? ***

How much $$ did you waste with David Lane on this grossly defective lawsuit and laughable attempt at an injunction? 

Why are you arguing for the Greedy Big $$ Dispensary Cartel Pigs?

Why are you arguing in favor of promoting marijuana to MINORS?

Have you NO SHAME ??

Cognitive_Dissident topcommenter

@DonkeyHotay @Cognitive_Dissident  

There was absolutely nothing wrong with that post except that you didn't have any intelligent response to its content.

I'm sorry you have no clue about the topic and don't care to obtain one.

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