In a July news release for the campaign opposing legalization, Sen. Dianne Feinstein (D-Ca.) claimed that the legalization measure, Prop. 64, "rolls back anti-smoking advertising protections we’ve had for decades and allows marijuana smoking ads in prime time, on programs with millions of children and teenage viewers." The No on 64 campaign similarly states on its website that "Proposition 64 would, in effect, end a 45-year ban on smoking ads on television."
It's an alarming claim, based on a provision within the proposed legislation that reads as follows: "Any advertising or marketing placed in broadcast, cable, radio, print and digital communications shall only be displayed where at least 71.6 percent of the audience is reasonably expected to be 21 years of age or older, as determined by reliable, up-to-date audience composition data."
A spokesman for the No on 64 campaign told the Los Angeles Times that provision was "a joke," and said that the 71.6 percent bar was so low as to be meaningless. "The initiative’s 71.6% adult audience threshold means almost every show on television will have ads promoting smoking marijuana."
Polling by the opposition indicates that the issue has some resonance with voters: A survey commissioned by the No on 64 campaign found that support for legalization dropped by 13 percentage points after voters were presented with an argument that legalization would lead to marijuana advertising on prime-time TV.
But there are some major problems with the argument. That "45-year ban on smoking ads on television" that opponents mention? That's enforced at the federal level and would remain unchanged by whatever happens to California's state laws.
There's also the issue of marijuana still being illegal at the federal level. While the federal government has loosened its oversight of marijuana sales in states that have legalized it, it still enforces certain restrictions on how state-legal marijuana enterprises can do business — including advertising on federally licensed TV and radio stations. Under the federal Controlled Substances Act, it remains illegal to advertise Schedule 1 drugs like marijuana.
Because TV broadcasters are licensed by the federal government, they are concerned that any marijuana advertising might lead to a revocation of their licenses.
Prop. 64 "is not going to change anything in terms of the federal license we operate under," said Joe Berry, president of the California Broadcasters Association, in an interview. Even if Prop. 64 passed, the federal rules would stay the same.
Andrew Acosta, a spokesman for the No on 64 campaign, isn't convinced by the appeals to federal authority. "Federal law also prohibits marijuana," he said in an interview. If the state is flouting federal law by legalizing weed, what's to stop broadcasters from flouting federal law by running marijuana ads?
But TV stations aren't part of the marijuana industry. Running pot ads would jeopardize their licenses. "Stations aren't going to want to risk losing their license to broadcast for an advertisement or two from a local business," the California Broadcasters Association's Joe Berry said.
For these reasons, PolitiFact rated the No on 64 campaign's claims about advertising "mostly false." But the campaign remains undeterred in its messaging. "The fact that they put TV advertising into the initiative was done for a reason," No on 64's Andrew Acosta said. "They could have not put it in, or they could have been very clear about a much more regulated approach but they used the same language."
But backers of Proposition 64 say they included the language in a good-faith effort to regulate any potential TV advertising in the event that federal law does change. Jason Kinney, a spokesman for the Yes on 64 campaign, said in an interview that "our position was that we should have some specificity of what TV ads would look like if federal law changes. Right now we have a medical [marijuana] system that does not have any restrictions on advertising."
Kinney says the language on advertising was chosen to mirror restrictions already in place for the alcoholic-beverage industry, which also bans TV advertising on shows where fewer than 71.6 percent of the audience is 21 or over. The provisions governing alcohol companies are voluntary and self-imposed by the industry — there's no law backing them up. So in that sense, the marijuana industry in California would be subject to tighter controls than the alcohol industry is.
Colorado's legal marijuana regime has similar requirements in place stating that marijuana advertising is prohibited in markets where more than 30 percent of the audience would be expected to be under 21. Notably, not a single recreational marijuana ad has run on TV in Colorado since voters there approved legalization.
One station almost ran two marijuana-related ads during late-night TV: one for a vaporizer used to smoke cannabis oil, and the other for a Denver marijuana dispensary. The ads didn't mention marijuana, and they contained no images of the plant or people smoking it. But the station ultimately decided not to run the ads, citing "lack of clarity around federal regulations that govern broadcast involving such ads."
Kinney also pointed out there is currently no TV advertising for medical marijuana in California, even though the state's 20-year-old medical marijuana system places no restrictions on advertising at all.
The results of California's upcoming vote on marijuana legalization is being intently monitored by people on all sides of the drug policy debate. The state as seen as a bellwether: If the world's sixth-largest economy legalizes weed, other states — and even countries — would likely give marijuana legalization a close look in coming years.