The Growing Industry Of Marijuana Advertising

In Humboldt County, radio stations broadcast gardening ads geared toward the Emerald Triangle's most lucrative — but still federally illegal — industry: marijuana. NPR's Kelly McEvers speaks with broadcast lawyer Harry Cole about the legality of advertising pot and related growing products.

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KELLY MCEVERS, HOST:

Here in California, it's not uncommon to hear ads like this.

(SOUNDBITE OF VARIOUS ADVERTISEMENTS)

UNIDENTIFIED MAN #1: There's gold in them hills, Royal Gold organic potting soil, that is.

UNIDENTIFIED MAN #2: CANNA Nutrients are media specific, so it doesn't matter if you're hydro or soil, coco or clay.

UNIDENTIFIED MAN #3: Come on down out of them hills and to the (unintelligible).

MCEVERS: These could be ads for products to help your flowers or something else, medical marijuana, now legal in several states. But it's an illegal substance, according to the federal government, which poses an interesting question: How do you advertise a product like that? Harry Cole specializes in broadcast law. He joined me to talk about what you can and can't advertise when it comes to legal weed.

HARRY COLE: There are no rules against advertising it at this point. There are some restrictions on how to advertise. You're not supposed to market to kids, for example. Other than that, as of right now, the FCC has taken no position at all on the propriety or the legality of advertising marijuana. Many broadcasters are concerned, I believe, that the FCC could conclude that the promotion of the killer weed would be just a bad thing. And then taking that out to the logical extension, we will take away your license if you do that.

MCEVERS: I want to play you a clip of an ad that aired here in California up in Humboldt County, actually. The clip isn't advertising marijuana, but it seems pretty clear that when they're talking about gardening supplies, what they're supposed to be used for, let's play it.

(SOUNDBITE OF ADVERTISEMENT)

UNIDENTIFIED WOMAN #1: It's a mean green trimming machine from Trim Scene for, uh, trimming flowers.

UNIDENTIFIED WOMAN #2: Don't see nothing but grain in this (unintelligible).

UNIDENTIFIED WOMAN #1: Oh, granny. You know we're part of that specialty flower co-op. Crops too big to arrange them all ourselves, even with our friends coming by to help.

UNIDENTIFIED WOMAN #2: All those secret meetings and...

MCEVERS: OK. So is this kosher? Is this like - is this OK?

COLE: Sure. Sure. I mean, if you can advertise the straight-out dope, you can certainly advertise the secondary paraphernalia. And again, there are no rules preventing you from doing that. But, you know, the kind of tiptoeing around the issue, it's vaguely reminiscent of what happened back in the '60s and '70s with drug lyrics. The commission announced early on that they really didn't think it was a good idea for broadcast stations to be playing records that celebrated from drug use.

There was no rule against it. The commission wasn't doing anything, but it was arching its eyebrow and shaking its finger at you and saying, you know, you better watch out because we could do something if we wanted to. So you better watch your step.

MCEVERS: So is that something you could see happening now, you know, saying look, we're not going to take away your license but watch yourself.

COLE: Sure. Absolutely. But again, the commission hasn't done that, and I think that's because the federal government as a whole has demonstrated a fairly clear ambivalence to what's going on. But there's at least that threat. You know, you start seeing these things in the newspapers, you start worrying.

MCEVERS: We know there's one time a day when some of the rules don't apply and when stations are more willing to do things, and that's late night. Do you think we're going to see, you know, more marijuana ads mixed in with those late-night ads in the future?

COLE: It wouldn't surprise me because that's when the munchies strike. Come on.

MCEVERS: So they say.

COLE: So they say. I've read about that in books. But, yeah, I would think that if you were going to see it start, you're going to see it start at that time of day because for sure, that one thing that advertisers don't want to do is appear to be appealing to young kids.

MCEVERS: Harry Cole is a lawyer who specializes in broadcast law. He joined me to talk about the legal issues surrounding marijuana advertisements. Harry, thank you so much.

COLE: It's my pleasure.

(SOUNDBITE OF SONG, "ROCKY MOUNTAIN HIGH")

JOHN DENVER: (Singing) Rocky mountain high.

MCEVERS: This is NPR News.

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