Muda69 Posted January 22, 2025 Posted January 22, 2025 https://www.indystar.com/story/news/politics/2025/01/22/indiana-general-assembly-bill-prohibits-marijuana-advertising/77779522007/ Quote Last Labor Day weekend, state Sen. Spencer Deery drove his family two hours from West Lafayette to Michigan for a day trip. Along the highway, he saw a whole lot of billboards advertising marijuana businesses ― even though he hadn't yet crossed over into Michigan. His legislator brain kicked in briefly: Marijuana isn't legal here. Should lawmakers do something about this? He forgot about it. But then a couple weeks later, he opened his mailbox to find flyers advertising curbside pickup for a business in Michigan. "And I'm like, that's weird," he said. "This seems really targeted for me, He's not the only lawmaker thinking about it. At the same time several Republicans are leading the push to legalize some form of marijuana in Indiana, there's also a tangential effort to restrict advertising of it while it remains illegal in the state. Indiana is surrounded by states where marijuana is legal in some form. "We're in a world where marijuana advertising is now being regulated; because we have not entered the world of marijuana being legal in Indiana, we're behind the game on that," he said. "Whether you think it should be legal or not, I don't think it's good public policy to have unchecked advertising here." Deery filed Senate Bill 166 to outlaw marijuana product or business advertising in any medium ― billboard, digital or otherwise ― within the state's borders. House Rep. Timothy Wesco, R-Osceola, authored House Bill 1327, which says the same thing. Middlebury Republican Rep. Joanna King's House Bill 1026 prohibits advertising on a narrower scope: Only outdoor signs within 1,000 feet of places where kids frequent, like schools and playgrounds. "It's illegal in Indiana, it's illegal federally, and we have signs in our community that are inviting kids to get high," King said. "And I just think that it's time to at least bring some attention to that." Legally, the state could probably get away with doing this. But Marion County GOP Chair Joe Elsener, one of the advocates working for a new lobbying group called Safe and Regulated Indiana, thinks it's a waste of breath. "That conversation is spending time debating a symptom of the overall problem," he said. "We solve that issue if we create the safe and regulated market in Indiana. "Let's not spend time and energy biting around the edges on a small symptom." Can Indiana regulate marijuana advertising? The short answer is: "maybe yes, maybe no," said Daniel Conkle, a law professor emeritus from Indiana University. Commercial advertising is a form of protected speech, though it's slightly less protected than other forms of speech. Whereas most First Amendment cases would say the government needs a "compelling" interest to regulate speech, in the case of commercial advertising, the standard is a notch lower: a "substantial" interest. But the First Amendment legal doctrine also has routinely said the government can prohibit the advertising of a product that is illegal, Conkle said. Not only is marijuana illegal in Indiana, but it's technically illegal federally. That would seem to give a lot of leeway to these bills. But where Deery and Wesco's bills possibly enter challenging territory is their attempt to regulate the digital advertising space. It's a similar situation with the law passed last year requiring age verification on porn websites, even though these businesses aren't located in Indiana: How far can the state's regulation tentacles extend on the internet? A similar age-verification law from Texas is being reviewed by the Supreme Court, but on the grounds of First Amendment right to expression, and not testing the question of regulating interstate commerce. "The problem here might be, if this applies to websites, it might be regarded by a court as being overly broad in its application," Conkle said. "It is fuzzy as to exactly how far a state can go." Deery has thought of this. His intent, he said, is not so broad. It would also be up to the attorney general to actually enforce this, and pick and choose his battles. "I wanted to try and focus on people that are deliberately targeting things here," he said ― like the mailers he got. "I don't see any world where the attorney general is saying, Boy, 'I noticed that on some random website, not targeted, that it showed up and somebody accidentally accessed it in Indiana, that's where I'm going to go charge it.' That's not going to happen." King's bill solves that potential problem by only applying to physical outdoor signs, like billboards. But hers could run into another issue: It reminds Conkle of a 2001 Supreme Court case, Lorillard Tobacco Co. v. Reilly, which challenged a Massachusetts law with essentially the same restrictions, but applied to tobacco use for minors. But because virtually every commercial space in Massachusetts fell within the ban, the court decided the law unduly restricted the First Amendment. Indiana is a different state with far different geography, of course, so who knows whether a business would try to pick that fight here. Legalization of marijuana would probably render these bills moot, Deery acknowledges, but he still thinks it's worth getting a grip on before that happens ― especially as Indiana is now surrounded on all sides by states where it's legal in some form. "I think we're going to start seeing more and more of it if we don't act, and I think it's going to get more aggressive," he said. Perhaps Mr. Deery's "legislator brain" should concentrate on best serving his constituents, not thinking of ways to restrict their freedoms. And sorry Indiana legislature the cat is already out of the bag, marijuana advertising or no marijuana advertising. Thousands of Hoosiers during the week and especially on the weekends are getting in their cars and driving to Michigan/Illinois/Ohio to purchase marijuana products and bring them back to Indiana. If you really want to stop that you need checkpoints at all border crossings, right?
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