California initiative draws fire for opening the door to TV ads that promote pot smoking

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Nearly a half-century after tobacco ads were kicked off television in the United States, an initiative in California would take a first step toward allowing TV commercials that promote a different kind of smoking — marijuana.

Proposition 64, which is on the November ballot, would allow people age 21 and older to possess and use up to an ounce of marijuana and would allow pot shops to sell cannabis for recreational use.

The initiative also includes a provision that could someday allow cannabis sellers to advertise their products in print ads and on digital sites and radio and television stations, but would “prohibit the marketing and advertising of non-medical marijuana to persons younger than 21 years old or near schools or other places where children are present.”

Television ads are not likely to appear soon, even if voters approve the initiative. There are other impediments to pot ads hitting the airwaves in California, including the fact that cannabis is still seen by the federal government as an illegal drug.

Still, the possibility that television commercials will some day pop up featuring people smoking marijuana has been seized on by opponents of the ballot measure, including Democratic Sen. Dianne Feinstein of California.

“It 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,” Feinstein said this month in announcing her opposition to Proposition 64.

Health officials are also concerned. The American Heart Assn. of Greater Los Angeles has not yet taken a position on the initiative, but its board president, Dr. Ravi Dave, said it would be “tragic” if television was opened to ads for smoking marijuana.

We don’t want to see smoking re-normalized, and exposure to marketing and advertising does that.
— Ravi Dave, UCLA Health cardiologist
“We view marijuana advertising in the same light as cigarette and e-cigarette advertising — we don’t want to see smoking re-normalized, and exposure to marketing and advertising does that,” said Dave, a UCLA Health cardiologist.

In 1970, then-President Richard Nixon signed legislation barring cigarette ads on television and radio amid health concerns about tobacco causing cancer and heart disease.

Proponents of Proposition 64 say it includes rules to make sure the ads are not seen by minors, even going so far as to prohibit the use of marketing techniques that are appealing to young people, such as the use of symbols, music or cartoons.

“Concerns that marijuana ads are somehow going to flood the airwaves are the same tired scare tactics from the anti-marijuana opposition that were tried in other states and ultimately proven false,” said Jason Kinney, a spokesman for the “Yes on Proposition 64” campaign.

A key provision of the initiative says: “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.” Colorado has a similar standard.

That provision is dismissed as “a joke” by Wayne Johnson, a chief strategist for the opposition campaign, the Coalition for Responsible Drug Policies, who said a study conducted by his group found that the standard would still allow marijuana ads on shows whose audiences include many minors.

“Proposition 64 would break a 45-year-old ban on smoking ads on television, including on programs with huge audiences of adolescent viewers like the Olympics, and ‘The Voice,’” Johnson said. “The initiative’s 71.6% adult audience threshold means almost every show on television will have ads promoting smoking marijuana.”

Kinney said the initiative does not roll back rules prohibiting tobacco ads. And the approval of the ballot measure alone is not enough to allow cannabis ads.

“The fact is TV and radio broadcasters are governed by federal, not state law, and federal law does not allow TV and radio ads for marijuana because it remains illegal under federal law,” Kinney said.

“In the far-down-the-road circumstance that such ads are one day allowed under federal law, we wanted voters to be assured that they would be governed by the same strict standards that are currently applied to alcohol ads,” he added.

The thorny issue was a hot topic on the agenda of a conference of the California Broadcasters Assn. in Universal City this month, where television station owners met with a representative of the Federal Communications Commission.

David Oxenford, a Washington D.C.-based attorney who represents broadcasters, said the ban on tobacco advertising has no direct impact on marijuana ads.

Recreational marijuana use has been legalized in Alaska, Colorado, Washington and Oregon, but Oxenford said the ability of broadcasters to run marijuana ads in those states is hindered by federal law. Marijuana is still classified by the U.S. Drug Enforcement Agency as an illegal, Schedule 1 drug, along with heroin and LSD.

“As broadcast stations are federal licensees, most have been very cautious about running ads for a federally controlled substance even where, as in Colorado and Washington, the state’s declared it legal,” Oxenford said.

He said the “ambiguous state of affairs” and questions about who will head federal enforcement agencies after the November presidential election have so far meant that “most broadcasters have been very cautious about accepting the ads, even if legal under state law.”

Keith Shipman, vice chairman of the Oregon Assn. of Broadcasters, said about 10 radio stations in Medford, Bend and Eugene have run marijuana ads, but he knows of no television stations that have done so.

One television station, ABC affiliate KMGH-TV in Denver, indicated last year that it planned to run marijuana business ads, but the decision was rescinded after managers at the station and its parent company, E.W. Scripps, said it appeared such ads would run afoul of federal law.

Sacramento FOX affiliate KTXL-TV ran ads for a medical marijuana dispensary some years ago, but has since adopted a policy of not accepting such advertising. An Arizona TV station has aired ads for a physician who refers patients to marijuana dispensaries.

Representatives of the Alaska and Colorado broadcasters associations said they are not aware of any television stations in their states that have run marijuana ads, and they have recommended that members not accept such ads.

“We discourage them from doing so because they are a federally licensed entity, and the federal government deems the sale and possession illegal,” said Cathy Hiebert, executive director of the Alaska Broadcasters Assn.

All that could change if federal officials follow the lead of states to shift the law. There is an active campaign to reclassify marijuana as a lesser drug, officials said.

If federal officials allow such ads, “At that point, it would not be different than alcohol ads,” said Joe Berry, head of the California Broadcasters Assn. “You could not target children or promote over-consumption.”

That scenario will be fully plumbed by the campaign against Proposition 64.

“A ban on tobacco ads has been a huge part of reducing smoking among minors,” Johnson said. “Why would we adopt exactly the opposite policy when it comes to smoking marijuana?”

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