In an April 2023 blog post, it was questioned whether Mississippi’s regulations restricting medical cannabis businesses from advertising are constitutional. Despite the challenges presented by the federal illegality of marijuana, the Fifth Circuit recently affirmed the dismissal of a lawsuit claiming the regulations are unconstitutional. The court ruling was based on the “lawful activity” prong of the Central Hudson test, which requires that commercial speech be related to lawful activity protected under the First Amendment.
Judge Jerry Smith emphasized that since marijuana transactions are illegal under federal law, any commercial speech proposing such transactions does not concern lawful activity and therefore is not protected by the First Amendment. The plaintiffs argued for a “same sovereign” theory, claiming that only a sovereign that prohibits an activity can regulate related commercial speech. However, the Fifth Circuit rejected this argument, stating that the focus is on the status of the activity as lawful, not the identity of the sovereign.
While this ruling may not be the end of the plaintiffs’ efforts, they have the option to appeal to the U.S. Supreme Court or challenge the regulations under the Mississippi Constitution in state court. The outcome of the case could have implications for the advertising restrictions on medical cannabis businesses in Mississippi. It remains to be seen how the situation will evolve, and further updates will be provided as necessary.
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