Mississippi cannabis ad ban gets its day in federal appeals court
- Clarence Cocroft II, owner of a medical marijuana business in Mississippi, filed a lawsuit challenging state rules that banned advertising for cannabis businesses in any media other than their own property or websites.
- During oral arguments, judges questioned the limits of commercial speech protection for a substance legal in Mississippi but illegal federally, with Cocroft's lawyer arguing that the state's legalization of medical marijuana should hold more weight.
- Mississippi argued that since marijuana is federally illegal, the state has the authority to impose advertising restrictions on cannabis businesses, maintaining that such businesses engage in illegal activity.
- The case reached the appeals court after a federal judge dismissed Cocroft's original lawsuit earlier in the year, raising concerns about federal court intrusion on state rights, with no decision made yet by the U.S. Court of Appeals for the Fifth Circuit.
A federal appeals court heard arguments Monday about whether Mississippi can ban advertising for medical marijuana businesses.
According to Law 360, the case stems from a lawsuit filed in November 2023 by Clarence Cocroft II, who owns Tru Source Medical Cannabis LLC in northern Mississippi, in which Cocroft challenged state rules that say cannabis businesses can only advertise on their own property or websites, not anywhere else. That includes “in any media,” according to the initial complaint.
During oral arguments, judges pressed attorneys on both sides about the limits of commercial speech protection for a substance that’s legal in Mississippi but prohibited federally, Law360 reported.
Cocroft’s lawyer, Ari S. Bargil, told the panel that Mississippi’s 2022 decision to allow medical marijuana should matter more than the federal ban when it comes to advertising. The state’s lawyer, Justin Matheny, argued that because marijuana is federally illegal, Mississippi can restrict ads however it wants.
“We’re not saying that we could outlaw marijuana, and therefore we can impose the restrictions that we do,” Matheny said. “What we’re saying is that marijuana business is outlawed – it is illegal activity. … And if it’s illegal activity, then the government could regulate or ban it. End of story. That’s our view.”
Judge Stephen A. Higginson questioned the state’s authority to ban advertising for businesses it licenses and regulates.
“Suddenly Mississippi can say, ‘Oh, but we get to completely close down commercial speech,'” Higginson said.
Mississippi legalized medical marijuana in 2022 but maintains stricter advertising rules than many other states with legal cannabis markets. When Cocroft first filed the lawsuit, he argued that he should have the same advertising rights as other businesses, having gone so far as to purchase billboards he wound up not being able to use due to state restrictions.
The case reached the appeals court after a federal judge dismissed Cocroft’s original lawsuit in January earlier this year, citing multiple reasons for rejection and concerns about federal court intrusion on state rights.
Recently, a federal court in Massachusetts threw out a high-profile case where a group of cannabis companies tried to overturn the federal ban on marijuana by suing U.S. Attorney General Merrick Garland. Those companies are working to appeal that July decision.
Right now, medical marijuana is legal in 38 states, and 24 states allow recreational use. In less than a month, those numbers could tick higher due to several upcoming state votes on marijuana.
Cocroft’s lawsuit named state officials, including Chris Graham of the Department of Revenue and Dr. Daniel Edney of the Department of Health. The U.S. Court of Appeals for the Fifth Circuit hasn’t said when it will make a decision on the case.