April 01, 2017 Features

Mailability of Marijuana-Related Advertising under the Postal Law

By William B. Baker

In November, voters in California, Massachusetts, and Nevada approved referenda that legalized recreational marijuana use. That makes seven states, plus the District of Columbia, containing more than 20 percent of the American population, in which recreational marijuana use is permitted under state laws.1 More than 25 other states allow medicinal use of marijuana, including several that voted to do so in November.

Notwithstanding these liberalizing state laws, the federal Controlled Substances Act (CSA) continues to classify cannabis products as controlled substances. And, surprisingly, one of the first places at which a conflict has arisen between the state and federal law is the United States Postal Service (USPS). The mailing of advertising concerning marijuana products has generated interesting legal complications, triggered by the intersection of permissive state laws, the restrictive federal law, an obscure mailing regulation, and a statutory rider on the Department of Justice’s (DOJ’s) appropriations bill.

The conflict began in late 2015 when the USPS’s Portland, Oregon, district took the position that a newspaper containing advertising for the sale of marijuana would be nonmailable, even in states (such as Oregon) in which marijuana has been legalized. The Portland district based this conclusion on a USPS mailing regulation and a federal statute:

  • Section 601.9.4.1 of the Domestic Mail Manual (DMM)2 declares nonmailable any advertising “that solicits or induces the mailing of any article described in PUB 52 as hazardous [or] restricted.” USPS Publication 52 (section 453.11) defines “restricted” matter to include “controlled substances” under the CSA, which include cannabis products.
  • 21 U.S.C. section 843(c) of the CSA makes it unlawful to place an ad in any publication “knowing that it has the purpose of seeking or offering illegally to receive or distribute a Schedule I controlled substance.”3

Based on these provisions, the Portland district concluded that if a newspaper contains an advertisement advocating the purchase of clinical marijuana from a medical marijuana dispensary, it violates 21 U.S.C. section 843(c). In addition, it asserted more broadly that if a piece of mail “contains an advertisement for marijuana, that mailpiece is nonmailable.”4

After the Portland district’s position became public, members of the Oregon congressional delegation asked Postmaster General Megan Brennan to clarify the USPS’s policy on the mailability of newspapers containing marijuana advertising. USPS General Counsel and Executive Vice President Thomas Marshall responded on the Postmaster General’s behalf in a December 2015 letter.5

The Marshall letter stated that the federal CSA forbids using the postal system to transmit advertising for the sale or purchase of marijuana, even if such sale or purchase is allowed under state law. It added that the CSA also prohibits the placing in newspapers and magazines advertisements for the sale and use of marijuana. That many states now allow at least some marijuana uses is immaterial, the letter said, because the USPS is a federal government entity and therefore must make mailability determinations based on federal, not state, law. It also added that 21 U.S.C. section 843(b) criminalizes using the mail to facilitate “the commission of any act or acts constituting a felony” under the law.

At the same time, the Marshall letter also reminded local postal officials that they are not authorized to determine whether a particular mailpiece is nonmailable.6 Accordingly, if a mailer insists on mailing a piece despite objections from local postal personnel, the post office must accept it for mailing. In other words, neither the Portland district office nor any other local office has authority to declare a piece nonmailable. Instead, postal procedures call for the local postal officials to report the piece to the Postal Inspection Service, which can refer the matter to law enforcement agencies for investigation.

Although the Marshall letter resolved the issue for practical purposes, at least for now, a number of legal issues remain unresolved. An initial question is whether the USPS correctly interpreted its own regulation. The postal regulation in DMM 601.9.4.1 treats as nonmailable only advertising matter “that solicits or induces the mailing of” a controlled substance. By its terms, that language does not appear to prohibit mailing advertising for such controlled substances unless the advertising solicits or induces the mailing of the cannabis product itself. In particular, DMM 601.9.4.1 does not appear to prohibit the mailing of an advertisement that solicits the in-store purchase of a cannabis product (in a state where such is lawful) or the delivery of such by nonmail means—such as by courier, UPS, or FedEx.7

A second issue left unresolved is whether the inclusion of a single marijuana advertisement renders an entire publication nonmailable. The postal regulation itself is silent on whether there is any distinction between mailing a single advertisement and mailing a publication of many pages, one of which may contain a small marijuana advertisement. That uncertainty imposes a substantial risk on a publisher that depends on mailed circulation, which is the case of many small weekly newspapers and most magazines.

Third, the USPS has not addressed the First Amendment commercial speech and freedom of the press issues raised by its position.8

Fourth, it is debatable whether 21 U.S.C. section 843 would apply to the mailing of a publication containing marijuana advertising. Section 843(c)(1) states: “It shall be unlawful for any person to place in any newspaper, magazine, handbill, or other publications, any written advertisement knowing that it has the purpose of seeking or offering illegally to receive, buy, or distribute a Schedule I controlled substance.” The statute on its face bans the placing of the ad by the advertiser, not its publication by the publisher. In the trade, “placing” an advertisement means buying the ad. Accordingly, the statute reasonably could be read as making illegal the purchase of the ad, not the separate act of publishing the same ad. Whatever illegal conduct may occur in this scenario happens before the publication is mailed.

However, section 843(b) criminalizes the use of the mail to commit or facilitate the commission of a felony under the CSA. Would the mailing of a publication that contains an ad that violates section 843(c) constitute a violation of section 843(b)?

Furthermore, an element of the offense established by section 843(c) is that the person placing the advertisement “knows” that its purpose is to seek to distribute “illegally” a Schedule I controlled substance. How should this be interpreted in states in which the usage of marijuana, either generally or only for medical purposes, is lawful? If the retail sale of marijuana is lawful in the state in which the advertisement is placed, in what circumstances could the advertiser have the required scienter?

Of course, the USPS does not enforce the criminal laws; that is the prerogative of the DOJ. During the Obama administration, the DOJ had little interest in enforcing these nonmailability provisions. Whether the new administration that took office in January 2017 will adhere to the same hands-off approach will be known only with time.

Even if the new administration wants to enforce the CSA in states that have legalized marijuana, it may not be able to. Since December 2014, the DOJ’s appropriations bill has included a rider that has prohibited the DOJ from “preventing” states from implementing their marijuana decriminalization laws.9 The continuing resolutions to fund the federal government through April 28, 2017, have carried the rider forward.10 As this is written, it is unknown whether the rider will continue after that date.

That rider effectively was used to squelch a federal criminal marijuana prosecution in United States v. McIntosh.11 There, the Ninth Circuit Court of Appeals held that the rider prohibits the DOJ from spending appropriated funds to prosecute individuals who engaged in conduct permitted by state medical marijuana laws and who fully complied with those laws. Construing the rider narrowly, the court held that the DOJ could still prosecute individuals who do not fully comply with the conditions imposed by the state law.

However, the rider applies only to states that permit medical uses of marijuana. By its terms, the rider would not prevent the DOJ from prosecuting recreational use of marijuana. And it is entirely unclear how the rider would affect an attempt to prosecute the mailing of an advertisement promoting the retail sale of marijuana.

Whether the DOJ, or the USPS, charts a new course remains to be seen. Nonetheless, the intersection of state legalization laws, the federal CSA, USPS mailing regulations, and a congressional appropriations rider illustrates that complex legal issues can arise from decriminalizing marijuana. ◆

Endnotes

1. Thomas Fuller, Californians Legalize Marijuana in Vote That Could Echo Nationally, N.Y. Times, Nov. 9, 2016.

2. DMM section 601.9.4.1 provides: “Any advertising, promotional, or sales matter that solicits or induces the mailing of any article described in PUB 52 as hazardous, restricted, or perishable is nonmailable except that such matter relating to controlled substances, radioactive materials, restricted liquids and powders, battery-powered devices, odd-shaped items in envelopes, and switchblade and ballistic knives, as described in PUB 52, is mailable if it contains packaging instructions and any other mailing limitations under PUB 52, [DMM] 508.9.0, and [DMM] 508.10.0 (18 USC 1716).”

3. This provision is limited to commercial advertisements. Section 843 excludes from the definition of an “advertisement” material that “advocates the use of a similar material, which advocates a position or practice, and does not attempt to propose or facilitate an actual transaction in” a cannabis product.

4. USPS, Mailpieces Containing Advertisements about Marijuana (Nov. 27, 2015), available at https://media.oregonlive.com/marijuana/other/2015/12/02/USPSruleson marijuana%20(2).pdf.

5. Letter from Thomas J. Marshall, Gen. Counsel & Exec. Vice President, to the Honorable Earl Blumenauer, House of Representatives (Dec. 15, 2015), available at http://media.oregonlive.com/marijuana/other/2015/12/17/USPS%20Response%20on%20Marijuana%20Ads%20(1).pdf.

6. DMM 601.9.11 states that “[p]ostmasters are not authorized to decide whether written, printed, or graphic matter is nonmailable based on its content or to deny entry to such matter or exclude it from the mail.”

7. Cf. Gordon v. Holder, 826 F. Supp. 2d 279 (D.D.C. 2011) (involving plaintiff business owner who shipped cigarettes via private shipping company).

8. Cf. Atlanta Coop. News Project v. U.S. Postal Serv., 350 F. Supp. 234 (N.D. Ga. 1972) (per curiam) (holding USPS decision declaring nonmailable newspapers that contain constitutionally protected speech to be unconstitutional prior restraint).

9. See Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538, 128 Stat. 2130, 2217 (2014); Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, § 542, 129 Stat. 2242, 2332–33 (2015) (adding Guam and Puerto Rico and changing “prevent such States from implementing their own State laws” to “prevent any of them from implementing their own laws”).

10. See Pub. L. No. 114-113, § 542, 129 Stat. at 2332–33 (“None of the funds made available in this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin, and Wyoming, or with respect to the District of Columbia, Guam, or Puerto Rico, to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”); see also Continuing Appropriations Act, 2017, Pub. L. No. 114-223, § 101(a)(2), 130 Stat. 857, 862 (2016); Further Continuing and Security Assistance Appropriations Act, 2017, Pub. L. No. 114-254, § 101, 130 Stat. 1005, 1005–06 (2016) (extending appropriations through April 28, 2017).

11. 833 F.3d 1163 (9th Cir. 2016).

William B. Baker

William B. Baker (wbaker@potomaclaw.com) is a partner in the Potomac Law Group, PLLC, Washington, D.C., where he practices in the areas of postal, privacy, and consumer marketing law. He currently serves as Vice-Chair of the Section of Science & Technology Law.