As we noted previously, the Biden Administration has signaled its intention to reclassify cannabis from a Schedule 1 to a Schedule 3 drug. With respect to advertising, this may be considered a step in the right direction but does not mean broadcasters will be completely free to advertise recreational cannabis, even where it has been legalized in a state like New York.
Noted Communications Attorney David Oxenford recently expressed a possible concern in his Broadcast Blog:
“Schedule III drugs include many that require prescriptions to use – including anabolic steroids and barbiturates – not exactly the kind of drugs one usually sees advertised on TV. Schedule III drugs generally require FDA approval before marketing and are subject to restrictions as to how they are distributed. Warning labels may be required. Federal registration is required for those who dispense and manufacture these controlled substances, and users must be tracked as well unless the Attorney General decides that such user registration is not in the public interest. These kinds of restrictions are certainly not in line with the ways that marijuana is sold in states that have “legalized” it under their state laws.”
Thus, while reclassification will help, it does not mean that broadcasting such advertisements is risk-free. There are also some restrictions under New York State law that must be considered.
You can see a full discussion of the cannabis issue in Attorney Oxenford’s Broadcast Blog here.
You can see a summary of the New York cannabis advertising rules here.