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LITTLE ROCK -- A Pulaski County circuit judge said in an order recently that he wants more information about the basis for state rules prohibiting medical marijuana cultivators from advertising their product to the public before ruling on whether the prohibition is unconstitutional.
Saying he is "loath to act on an incomplete record," Judge Morgan "Chip" Welch in an order Dec. 27 gave the state and plaintiffs in a lawsuit challenging the rules 90 days to gather information on the reason for the restrictions. He ordered a new hearing in the case for May 21.
The lawsuit was filed by Good Day Farm, a Pine Bluff medical marijuana cultivator, and Capital City Medicinals, a Little Rock dispensary, over laws the General Assembly passed regulating medical marijuana.
In June, Welch declared 27 laws regulating medical marijuana in Arkansas void and unconstitutional, saying the state Legislature had overstepped its authority. The judge deferred ruling whether the state can regulate the medical marijuana industry's ability to advertise.
In 2016, voters approved Amendment 98 legalizing medical marijuana in Arkansas. Since then the Department of Finance and Administration, which oversees the medical marijuana industry, crafted regulations on how dispensaries and cultivators can advertise their products. A cultivator, such as Good Day Farm, is not allowed to advertise "through any public medium or means designed to market its products to the public."
In a Dec. 7 hearing, Gary Marts, an attorney for Good Day Farm, argued that the First Amendment gives medical marijuana companies the right to market their products. Good Day Farm argues since they are a cultivator, their advertising is aimed at medical marijuana businesses, not the general public, something Marts likened to the ubiquitous ads from Anheuser-Busch, which mostly sells its beer to licensed retailers and bars, not directly to consumers.
The state has argued state regulators should be allowed to place tight regulations on advertising for medical marijuana products given that the drug is illegal under federal law. Attorneys for the state also said the government has an interest in preventing medical marijuana products from being advertised to children.
