MMJ Ad Ban Unconstitutional, says WA State Judge

TACOMA, Wash. (CN) - A Washington state law prohibiting doctors from including “any statement or reference, visual or otherwise, on the medical use of marijuana in any advertisement” is unconstitutional, a Superior Court judge ruled.

In a Jan. 9 letter to the state and a doctor’s attorney, Pierce County Judge Elizabeth Martin said she does expect that her ruling will be “the final word on the subject,” but that the state law is constitutionally vague and overbroad, and constitutes an impermissible restraint on commercial speech, in violation of the state and federal constitutions.
Judge Martin heard oral arguments on cross-motions for summary judgment on Dec. 16, 2014. She granted the doctor’s motion and denied the state’s. Here is the background.
In 2011, Dr. Scott Havsy, an osteopath, had published an ad that contained information on medical conditions which could qualify someone to get state permission to use medical marijuana. The ad contained an image of a marijuana leaf. Both aspects of the ad-the information and the image - violated Revised Code of Washington 69.51A.0030(2)(b)(v).
Washington voters legalized recreational use of marijuana in November 2012, through Initiative 502, which was credited, among other things, with bringing 81 percent voter turnout in that general election, by far the highest in the nation.
But in July 2012, the state Department of Health had charged Havsy with unprofessional conduct, and in August that year ordered him to be put on probation, fined, and enjoined from such advertising.
Havsy sued the Department of Health, challenging the constitutionality of the law. The department lacked legal authority to rule on that, and it was left to the Superior Court. The disciplinary action against the doctor was stayed pending the Pierce County Court’s decision.
Both parties argued before Martin that the ad is commercial speech. Martin said that may not be the case, as Havsy’s ads also had links to informational sources - including to the state’s - but the judge said she need not rule on that, as even as a ban on purely commercial speech the law is unconstitutional prior restraint.
“It is difficult to understand, for example, how a link to the state’s own website and a recitation of the language of Chapter 59.51A on medical marijuana harms public health and safety,” Martin wrote.
She found the law “impermissibly overbroad as it chills even informational speech aimed solely at public education.” She also found it unconstitutionally vague, “given that even a published statement by a health care provider, purely neutral and informational in nature, potentially violates the blanket prohibitions of this statute.”
Martin said she will rule on the issue of attorney’s fees later.