It’s open season for flagrant ads to sell illegal drugs like psilocybin, LSD, and other drugs, as Meta works to improve its algorithms to filter illegal content. Because content is being filtered by algorithms, not human beings, sometimes the wrong content—i.e. educational cannabis material—gets taken down while brazen ads to sell drugs remain up.

Some journalists are fed up with the double standard. A Canadian reporter said he was able to get an ad for LSD approved on Facebook, leading a Meta employee to finally remove the ad after the reporter reached out for comment. The National Post reports that Facebook’s automated moderation system approved an ad selling LSD, saying the ad doesn’t violate Meta’s advertising standards. The ad was eventually removed after the reporter contacted Facebook for comment.

Christopher McGrath, a senior manager at Deloitte Canada, said he began seeing ads for drugs on Facebook that he believes were triggered by algorithms while he was researching a recent report  on Canada’s black market cannabis trade.

Deloitte Canada’s report, “Clearing the Smoke: Insights to Canada’s Illicit Cannabis Market,” was supposed to provide data on illegal cannabis sales, but McGrath’s research for it only triggered an onslaught of various cannabis ads on Facebook. So on one hand, Meta wants to filter that content, but on the other, also market ads to users looking for items like cannabis.

University of Toronto media economics professor Brett Caraway, is due to the reliance social media platforms place in machine learning and automated algorithms to police their content.

“When these platforms started, they had departments full of people—actual humans—to sift through the most toxic and horrible parts of the internet,” he said.

“With the amount of content that goes up every minute, there’s just no way humans can put eyes on everything, so they rely increasingly on algorithms and AI for the first round of filtration.”

Facebook responded to The National Post’s inquiries with the following, explaining that when those ads are found they are taken down: “We prohibit content—both in ads and in organic content—that promotes the buying and selling of pharmaceutical and non-medical drugs, and remove it whenever we find it,” the statement reads. “We’ll continue to improve in this area in our ongoing efforts to keep our platforms safe.”

Experts wonder if the decline in online advertising is playing a role and if Meta can’t spend enough on moderation. 

“We’ve seen a lot of major players cut back in the money they’re spending,” Caraway said.

“But Facebook needs that [money]—so if Chrysler or BMW leave, then they have no choice but to take on Jimmy-Bob’s Cannabis Store. Their business model is literally 98-per-cent advertising funded, so they don’t have any wiggle room.”

A History of Censorship

Facebook and Instagram are known for targeting cannabis-related accounts in various waves, taking steps to cut back on illegal drug content. In October of 2018, Facebook placed a pause on cannabis searches. The site justified the ban saying users were selling marijuana products through the social network. Soon, the ban would be lifted

The platforms Facebook and Instagram will close an advertising loophole, joining other tech companies amid the “great vape scare” that took place in 2019. In 2019, an Instagram spokesperson said that Facebook and Instagram will start removing posts that promote vaping, tobacco, or weapons.

Companies that make totally harmless products—such as organic soap and care products manufacturer Dr. Bronner’s—reported posts and ads getting taken down. Dr. Bronner’s experienced similar issues with its boosted posts back in June 2017. 

The company received this response from Facebook after some of its ads were inexplicitly taken down: “This ad isn’t running because it doesn’t follow our Advertising Policies. We don’t allow ads that promote prescription or recreational drugs. Ads like these are sensitive in nature and are usually contrary to local laws, rules or regulations. Please keep in mind that advocacy or awareness ads are allowed…”

Eight Tulsa, Oklahoma-based medical cannabis businesses said that the platform was subjectively censoring their Facebook pages.

A group of cannabis businesses said they have been negatively affected by social media bans, and they are no longer taking the alleged discrimination lying down. Led by the Ye Olde Apothecary Shoppe, eight dispensaries have announced that they are suing Facebook executives over what they call “a pattern of targeting the Oklahoma medical marijuana industry.”

Efforts are being made to control drug ads on social media, particularly in Canada. In Canada, a new online harms bill includes content guidelines for social media platforms and enforcement frameworks meant to hold the tech companies accountable. In newer legislation,  Meta itself would be penalized if it let illegal drug ads stay up.

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A federal judge has dismissed a lawsuit filed by a Mississippi medical marijuana dispensary owner challenging the state’s ban on cannabis advertising. In the legal action, Clarence Cocroft II, the owner of Tru Source Medical Cannabis, argued that Mississippi’s regulations prohibiting cannabis advertising in any media amounted to unconstitutional censorship of the industry.

But U.S. District Judge Michael P. Mills disagreed with Cocroft and dismissed the lawsuit on Monday. In his ruling, Mills wrote that because the possession of marijuana remains illegal at the federal level, it is not a “lawful activity” that is protected by the U.S. Constitution like some other forms of commercial speech.

Cocroft opened his dispensary in Olive Branch, Mississippi after the state legislature legalized medical marijuana in 2022. In his lawsuit, he argues that he has faced difficulty reaching potential customers because of the state’s ban on advertising by cannabis businesses. 

The judge, however, said that overturning Mississippi’s ban on cannabis advertising would be a “drastic intrusion upon state sovereignty.”

“This is particularly true considering the fact that, by legalizing marijuana to any degree, the Mississippi Legislature has gone further than Congress itself has been willing to go,” Mills wrote in his ruling, according to a report from the Associated Press. “In light of this fact, on what basis would a federal court tell the Mississippi Legislature that it was not entitled to dip its toe into the legalization of marijuana, but, instead, had to dive headfirst into it?”

State Sued Over Advertising Ban

Cocroft is represented by the Institute for Justice, a nonprofit libertarian law firm. The lawsuit names the Mississippi Department of Health, Department of Revenue and Alcoholic Beverage Control Bureau as defendants in the legal action.

In the suit, Corcroft maintains that Mississippi’s ban on cannabis advertising prevents him from reaching out to customers via television, radio or print ads. He is even forbidden from placing ads on billboards that he owns. 

The judge ruled that the state cannot prohibit cannabis businesses from displaying products on their websites or from using “appropriate signs” on their businesses. The authority to enact other restrictions, however, lies with the state Health Department, which bans dispensaries from advertising or marketing “in any media.” Corcroft’s legal team says the ban amounts to unconstitutional censorship.

“When Mississippi legalized medical marijuana, it relinquished its power to censor speech by medical marijuana businesses,” said Ari Bargil, an Institute for Justice attorney. “If a product is legal to sell, then it is legal to talk about selling it.”

Corcroft’s suit argues that a current review of cannabis policy by the Biden administration and presidential pardons for low-level federal marijuana offenses constitute a de facto legalization of cannabis. But while the president has pardoned thousands of people who have been federally convicted of marijuana possession, cannabis remains illegal under federal law. As long as marijuana remains a federally controlled substance, the judge ruled, the states are free to pass laws that restrict advertising by cannabis businesses.

“Plaintiffs thus argue that Congress and President Biden have ‘all but’ made the possession of marijuana lawful, which strikes this court as a tacit admission that it still remains illegal under federal law,” Mills wrote.

In a statement released after the judge’s ruling and dismissal of the case, Corcroft said that Mississippi’s ban on cannabis advertising is a violation of the First Amendment rights of legal businesses. He added that he plans to appeal the judge’s ruling to the 5th U.S. Circuit Court of Appeals.

“I’m prepared to fight this fight for as long as it takes,” Cocroft said. “This case is bigger than me and my dispensary – it is about defending the right of everyone to truthfully advertise their legal business in the cannabis industry.”

Although Mississippi’s regulated medical marijuana businesses still face the state’s ban on advertising, Brian Vicente, founding partner of the cannabis and psychedelics law firm Vicente LLP, noted that some states with similar policies have later modified the restrictions.

“Mississippi’s marijuana laws are still new. In most states, we see advertising restrictions lessen over time as states realize that marijuana, including medical marijuana, is a legitimate product that is not only highly regulated but also legal and safe for sale in the state,” Vicente wrote in an email to High Times. “Mississippi needs to consider that, by severely restricting medical marijuana advertising, they are hurting their medical marijuana patients who need access to this important medication. These restrictions significantly impact patients’ accessibility to information about the program and their medication.”

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The owner of a cannabis dispensary in Mississippi has filed a lawsuit alleging that state laws which prevent him from advertising his business violate his First Amendment rights.

Clarence Cocroft II of Olive Branch, Mississippi is the owner of Tru Source Medical Cannabis. According to the Associated Press, Cocroft filed a lawsuit Tuesday because he says regulations put in place by the Mississippi Department of Health have made it inordinately difficult for him to run his business. 

Mississippi legalized cannabis for medicinal purposes in 2022 but the laws only allow for people with certain “debilitating conditions” to obtain a recommendation. The Mississippi Department of Health opted to ban cannabis providers from advertising in any way shape or form. Cocroft said this is a violation of his constitutional rights as a business owner. 

“All I want to do, like any other business owner, is have the opportunity to advertise. If I pay taxes in this business, which I do, I should be able to advertise,” Cocroft said at a news conference. “All I’m asking from this state is to provide us with the same liberty that they’ve provided other businesses.”

According to the Mississippi Department of Health website, Mississippi cannabis businesses are allowed to have a sign on their store and have a website with a list of products available but they cannot otherwise participate in any form of communication that could be perceived as advertising. An attorney for Cocroft, Katrin Marquez told the Associated Press that this constitutes unlawful censorship.

“Under the ban, Clarence can’t advertise in any media. He cannot place ads in newspapers or magazines, on television or radio, or even on billboards that he already owns,” Marquez said. “The First Amendment does not allow a state to completely censor a legal business. If it is legal to sell a product, it is legal to talk about that product.”

The list goes on. Legally operating cannabis dispensaries in Mississippi are not allowed to display products in their window, not allowed to send out mass text messages or emails. They can’t offer discounts, promotions or deals of any kind nor can they give away free product or any kind of samples. They also can’t put their business name on an Adopt-a-Highway sign or an electronic interstate sign.

Cocroft told the Associated Press that when he started his business, he actually set aside some money for advertising and even bought high-profile billboards in high-volume areas of the state which he has since been forced to lease out to other businesses. 

“It’s simply unfair that every other legal business in Mississippi is allowed to advertise, while I have to rely on word of mouth,” Cocroft said.

Many states with legal adult-use or medical cannabis markets have enacted regulations restricting cannabis advertising. Most states opt to apply certain restrictions on cannabis advertising on public broadcasts to ensure that the majority of the audience who will see the ad will be of legal consumption age but the particularities vary state to state.

Most of these restrictions are likely not First Amendment Violations based on comparable Supreme Court cases related to tobacco and pornography advertising which have determined that reasonable time, place and manner restrictions are not First Amendment violations, but few states have outright banned cannabis advertising to the degree that Mississippi has. Louisiana, Arkansas and Alabama have similar laws banning cannabis advertising through public mediums, but Marquez argued to the Associated Press that Mississippi’s laws are harsher still. 

“The state government cannot simultaneously authorize the legal sale of a product or service, while forbidding the truthful advertising of said product,” Marquez said. “No law, state or federal, justifies the censorship in this case.”

According to the Associated Press, Cocroft is represented in this lawsuit by the Institute for Justice and his lawsuit is specifically targeted at leadership in the Mississippi Department of Health, Department of Revenue and Alcoholic Beverage Control Bureau. The language of the lawsuit alleges that state regulations unfairly target legally operating cannabis  businesses trying to utilize their First Amendment rights to spread truthful, commercial speech. 

Mississippi state law allows cannabis patients to obtain 3.5 grams of cannabis once per day, six days per week. The list of qualifying conditions is short and limited to illnesses like cancer, HIV and Parkinson’s disease. A full list can be found here. 

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Cannabis is so stigmatized that some New Yorker’s don’t even want to see it. One New York Republican wants to remove the eyesore of cannabis billboards and signs throughout the state, and introduced a bill that would do so, increasing penalties for signs that are already restricted.

Assemblyman Scott Gray (R-Watertown) recently introduced A8200, which would punish people with cannabis signs each day the signage is up. It would prohibit the display of ads for cannabis unless the ads are by an authorized dealer on the site of an authorized business. 

New York already restricts cannabis-related billboards, extensively. Regulations that were established recently by the state’s Office of Cannabis Management include a ban on cannabis billboards for all cannabis businesses except those with retail sales or delivery. And those signs can only be used to alert consumers of the location.

The proliferation of cannabis billboards raised alarm—but one particular ad that mimicked the “Got Milk?” campaign, saying “Got Weed?” especially irked the lawmaker, who said it appeals to teens.

“The rollout Office of Cannabis Management has included many delays, turmoil, and confusion,” Gray said, The Post-Journal reports. “A concern of many New Yorkers is that advertisements of many cannabis products will be geared towards adolescents, including those who may not even be of legal age to possess cannabis or cannabis products. For example, in my district there is a large billboard with a pronounced ‘Got Weed?’ advertisement, closely resembling the ‘Got Milk?’ campaign that was directed towards teenagers.”

To that end, “Got Milk?” isn’t exactly healthy advice either: It turns out that drinking cow milk everyday could be harmful as well, as dairy is the number one source of saturated fat—leading to heart disease, type 2 diabetes, and Alzheimer’s disease. It can also up your chances of getting ovarian or prostate cancers, and the four advised food groups including dairy were tossed out decades ago.)

The bill would prohibit roadside signage for the sale of cannabis or cannabis products on roads and highways, and establish a civil penalty of $1,000 for the first offense and a subsequent fine of up to $2,500 for each day that a violation continues.

“Numerous scientific studies have shown serious effects from marijuana on teenagers brain’s, and this legislation will ensure that products are not advertised in a harmful way, while protecting the rights of authorized establishments to have signage acknowledging the location of their venue. This legislation does not prohibit the signage for retail operations, rather specific product advertising,” Gray wrote.

Three states with adult-use cannabis—including New York—ban cannabis advertising on public property. Oregon restricts the distribution of handbills on public property while eight of the states prohibit cannabis advertising on public vehicles and mass transit. Six states ban cannabis advertising at locations related to transportation, i.e. roads. Three more states, also including New York, restrict general visibility on signs and billboards. Alaska restricts cannabis business to a maximum of three signs that are visible from a public right of way.

Other States Take Action on Cannabis Signage

Several states have implemented restrictions on cannabis-related ads and billboards to date. Michigan State Representative Mary Whiteford, a Republican based in Allegan County, introduced a bill in 2021 that would ban cannabis billboards in Michigan.

House Bill 4609 would do just that, but it didn’t initially pick up steam. Like New York, Michigan also restricts cannabis billboards, which are regulated by the state’s Marijuana Regulatory Agency.

“About four years ago, when medical marijuana and recreational marijuana were legalized, I had a great concern among our youth that they would find using marijuana as an acceptable form of recreation, and that really bothered me,” said Whiteford. “I got a niece who was addicted to drugs who took her life when she was 23 years old. And I know that she was exposed to marijuana as a teenager and was using it. So I do find in my heart that it’s not good for children to be using marijuana.”

California has gone back and forth on the issue. A 2021 regulation, which comes from the California Bureau of Cannabis Control, overturns a previous ruling, which provided that billboards were allowed unless they were within a 15-mile radius of the state border. 

California’s previous ruling allowed for cannabis billboard advertising along state and interstate highways. While cannabis billboards are still allowed, they are prohibited on any highway that crosses state borders.

In Utah, billboards urged state voters to successfully approve the state’s Prop. 2, which legalized medical cannabis in the state.

Now it’s up to New York legislators to determine what’s appropriate for cannabis-related signage and billboards along roadsides.

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