Back in May, I wrote a piece predicting that Schedule III rescheduling would flip the first prong of the Central Hudson commercial speech test for state-licensed medical marijuana operators. My thought at the time was that speech proposing a transaction in a federally lawful product concerns “lawful activity,” and that term has been the death knell for every marijuana advertising challenge for decades. I called it a constitutional revolution. I still think it is, and we may get an opportunity soon to test my prediction and the limits of limitations on marijuana-related speech.
A bipartisan pair of lawmakers — Rep. Valerie Foushee (D-NC) and Del. James Moylan (R-Guam) — introduced the SAFE Platforms Act (H.R. 10433) last week, a bill primarily aimed at cracking down on online scams targeting seniors and other vulnerable users. This is obviously a laudable goal, but buried in the bill is a provision that designates cannabis, alongside tobacco and alcohol, as a “high-risk category.” This categorization would require online platforms to subject cannabis advertisers to enhanced identity verification, business history review, and periodic re-verification before they can run any ads. Cannabis lands in the same bucket as crypto, unregulated financial products, and gambling — and the FTC gets standing authority to add still more industries to the list by regulation.
For state-licensed medical marijuana operators, is this a sign of the types of rules they should expect to face living outside the shadows or is it a bridge too far?
Why This Matters Right Now
This bill isn’t happening in a vacuum. As we’ve written about, the House already passed the KIDS Act in July, which would bar platforms from facilitating cannabis advertising to users the platform knows are minors, and the Senate Commerce Committee advanced a companion Kids Online Safety Act in August with a similar restriction aimed specifically at video streaming services. Stack the SAFE Platforms Act on top of those, and you’ve got three separate pieces of federal legislation moving through Congress this year that single out cannabis advertising for extra scrutiny — right as Schedule III was supposed to be clearing the constitutional runway for exactly that kind of advertising.
The First Amendment Argument Doesn’t Disappear — But It Gets More Complicated
Under Central Hudson, once speech concerns lawful activity, the government can still regulate it if it has a substantial interest, the regulation directly advances that interest, and it’s no more extensive than necessary. I noted in May that youth-protection-focused restrictions are exactly the category of rule most likely to survive that scrutiny. A rule that keeps cannabis ads away from platforms minors are known to use looks a lot like the age-gating and placement restrictions courts have upheld for alcohol and tobacco. That’s not a new vulnerability created by these bills — it’s the same category of restriction I already flagged as likely durable.
The “high-risk category” verification scheme in the SAFE Platforms Act is a different animal, though. It isn’t really a content restriction on what a cannabis company can say in an ad. It’s a gatekeeping mechanism on who gets to advertise in the first place, i.e., heightened identity verification, documentation of business operations, review of online presence, periodic re-verification, imposed specifically because the category is cannabis. I wrote in May that digital platforms’ current blanket refusal to accept cannabis advertising isn’t itself state action (it’s private platform policy driven by fear of federal legal risk) but that Schedule III removes the most fundamental legal justification for that fear. A federal statute that codifies “cannabis equals high-risk, verify accordingly” does something different: It gives platforms a congressionally blessed reason to keep treating cannabis advertisers as a suspect class of advertiser, verification burden and all, independent of whether the underlying product is Schedule I or Schedule III. That’s not a minors-protection rule. It’s friction imposed on the entire category, adults included.
Whether that kind of categorical, non-content-based verification burden would even trigger Central Hudson scrutiny — as opposed to being treated as a neutral platform-safety regulation that just happens to name cannabis — is a genuinely open question. It’s not a speech ban. Nobody’s ad copy is being censored. But making it categorically harder for a lawful advertiser to get verified and stay verified functions an awful lot like a restriction on access to the advertising channel itself, and access restrictions have their own commercial speech pedigree separate from content restrictions.
The Practical Read
For state-licensed medical marijuana operators who read my May post and started planning around Schedule III opening up digital advertising channels, here’s the update: That door is still opening, but Congress is actively trying to install a second lock on it. The verification requirements would apply to any covered platform with 100,000 monthly active users or more than $25 million in annual revenue. If this bill moves, “we’re Schedule III now, our speech is lawful” stops being the end of the conversation with your platform rep and becomes the opening line of a much longer compliance conversation.
My advice from May still holds: Start building digital advertising capabilities and relationships with platform representatives now, because operators who are ready to move when the platforms open up will have a real head start. Just build in the assumption that “opening up” may come bundled with a verification questionnaire that tobacco and alcohol companies have had decades to get comfortable with, and cannabis companies are about to get a crash course in.
I’ll keep watching where this bill goes, and whether “high-risk category” survives markup or gets narrowed. Given how much attention Congress is suddenly paying to how cannabis gets advertised online, I don’t expect this to be the last word.
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