Why Is USPS Clamping Down on Ads for Legal Pot
Even in states where marijuana or medical marijuana is legal, newspapers that accept marijuana advertising are violating federal law if they send those publications through the mail, the US Postal Service said last week.
A letter from the Postal Service’s general counsel alerts mail carriers across the country that such ads are "non-mailable" under the Controlled Substances Act (CSA) and directs them to report any such ads on mailed material to law enforcement. The CSA bars the use of the mail to advertise Schedule I drugs.
What began as a local issue in the Pacific Northwest has now gone nationwide. Last month, the USPS Portland district office sent a warning memo to the Chinook Observer over marijuana-related advertising, prompting the newspaper to drop the ads.
That action came to the attention of the Oregon congressional delegation, which, in a joint letter, accused USPS of rigidity and said it should respect the will of the voters on marijuana legalization.
“We are working as a delegation to quickly find the best option to address this agency’s intransigence. Unfortunately, the outdated federal approach to marijuana as described in the response from the Postal Service undermines and threatens news publications that choose to accept advertising from legal marijuana businesses in Oregon and other states where voters also have freely decided to legalize marijuana, wrote Sens. Ron Wyden and Jeff Merkley and Reps. Earl Blumenauer and Suzanne Bonamici, all Democrats.
They got the attention of USPS, but probably not in the way they wanted. Instead of a retreat, USPS doubled down.
“Based on our review of the [law], we have concluded that advertisements for the sale of marijuana are non-mailable,” wrote USPS general counsel Thomas Marshall. The CSA prohibits the advertisement of marijuana in "any newspaper, magazine, handbill, or other publications," he wrote. “These provisions express Congress’s judgment that the mail should not be used as a means of transmitting advertisements for the sale of marijuana, even if that sale is allowed under state law,” he said.
It looks bad for newspapers and magazines that want to both use the mail and accept marijuana advertising, but the USPS position may turn out to be more bark than bite.
While pot ads may be deemed "non-mailable," the USPS letter conceded that “if a mailer insists on depositing written, printed, or graphic matter, the mailing must still be accepted unless it is not otherwise properly prepared for mailing.”
Instead of refusing to deliver the offending item, postmasters are directed to report the violation to the US Postal Inspection Service, USPS's law enforcement arm. The Postal Inspection Service could then turn the matter over to federal prosecutors, but it is unlikely such an offense would even be prosecuted. Under Justice Department directives, such as the 2013 Cole memo, which set out guidelines for enforcement of federal drug laws in marijuana and medical marijuana states, federal prosecutors have for the most part not cracked down on the industry.
Still, the marijuana mailing imbroglio has already intimidated at least one newspaper into refusing marijuana business advertising and has the potential to adversely affect both other local newspapers and the pot businesses who want to advertise in them. It's one of many marijuana-related issues that are going to require the end of federal pot prohibition to get resolved.