Administration Reclassifies Cannabis to Schedule III: Ability of Broadcasters to Advertise Remains Cloudy

Last week, the U.S. Department of Justice released an order rescheduling medical cannabis from a Class I to a Class III drug.  The rescheduling means that cannabis can be distributed for medical purposes.

The order states that medical cannabis can be distributed where 1) a cannabis product has been approved by the FDA or by an entity authorized to regulate medical cannabis under state law.  A state authorized entity must still register with the federal government. 

The DOJ’s order reclassifying cannabis does not mention recreational cannabis.  Reclassification is therefore limited to medical use of cannabis.  Non-medical, recreational cannabis will still remain prohibited as a Schedule 1 drug, pending further reclassification decisions. The DOJ and other agencies will conduct hearings beginning on June 29^th, which could result in changes to the classification of recreational cannabis.

The DOJ’s order does not mention advertising.  As it stands, recreational cannabis is still classified as a Schedule 1 drug.  Thus, advertising recreational cannabis remains illegal under federal law.

Issues surrounding advertising for medical cannabis are more complex.  As a general matter, you can advertise a schedule III drug that has received FDA approval.  It is similar to advertising any other “prescription” drugs that have been approved by the FDA.  To date, only one cannabis drug, Epidiolex, has been approved by the FDA.  Generally, stations should not advertise a specific Schedule III drug not approved by the FDA.  A question arises whether this would apply across the board to general advertising of medical cannabis that does not promote a specific cannabis product.  In any case, such advertising should not make any cannabis health claims, 

In this case, the DOJ’s order states that medical cannabis is reclassified as a Schedule III drug if it is approved by the FDA or complies with a state’s medical cannabis laws.  Even though New York legalized recreational cannabis, it has a highly regulated medical cannabis program.  As of April 1, 2026, New York had more than 75 thousand registered patients and 4,749 certified practitioners authorized to provide medical cannabis.  In other words, the order delegates authority regarding the approval of cannabis products from the FDA to the states. 

An additional issue arises with respect to recreational cannabis distributors who also sell medical cannabis.  Under the DOJ’s order, it’s not clear whether you can accept advertising for entities selling both recreational and medical cannabis.  At the very least, any advertising copy would have to be limited to medical cannabis.  

The reclassification to Schedule III is a step in the right direction.  It significantly reduces the risk that there will be federal prosecution of licensed entities distributing medical cannabis under New York law.  Nonetheless, until some legal issues are resolved, the risk for advertising is not zero.

In summary, the legal risk to your license for advertising recreational cannabis remains.  Because important legal questions are not yet resolved, there is still risk for advertising medical cannabis.  Before accepting any cannabis advertisements, you should consult your communications counsel or corporate legal office.

We hope that the hearings Scheduled to begin on June 29^th will clarify these issues.  Stay tuned!

You can see the DOJ’s press release here.

You can see the DOJ’s order here.

You can see the DOJ’s Notice for a Hearing here.