From the Legal Hotline (877-NEWS-LAW)

Medical marijuana advertising, plastic bag bans and more in today’s Legal Hotline recap.

Q. A medical marijuana company has opened a new location in our market area, and the manager there told my sales rep that dispensaries are not allowed to advertise. Is this correct? Also, we have been running the attached ad for a group of marijuana doctors. Any concerns with it?

A. Addressing the second question regarding the Florida physician(s)/clinic ad, I do not see any specific legal prohibition on such advertising. The only current requirement is that the physician/clinic not engage in “false, deceptive, or misleading” advertising.  I would also follow the recommendations and disclaimers recommended noted below for dispensaries.

Regarding medical marijuana treatment centers (i.e., dispensaries), these facilities must get approval from DOH for “internet advertising or marketing.” Far as I know, dispensary PRINT advertising is not regulated.  So I am not sure why the manager says advertising is “not allowed.” You can run the internet ad if it is pre-approved. I know that pre-approvals have been provided but maybe it is cumbersome or difficult to obtain so that would explain the response.

Technically, print-only ads should be able to run without approval.

In any event, keep in mind MM remains an illegal controlled substance under Federal law and anyone who knowingly “facilitates” the sale—including publishing ads—technically face low level risk (despite the fact that many states have legalized cannabis in varying degrees).

So, just to be safe, I usually recommend you consider including the following in the physician or dispensary ad—

  1. The ad should be “benign” in nature—such as, providing location and biographical information about the physicians/staff, directions about access for qualified patients under medical marijuana law, etc. The ad in question seems pretty bland.
  2. Add the following disclaimers:  1) “Medical marijuana is available in Florida but it remains illegal under Federal Law”; and 2)  “Medical marijuana is not available to minors under Florida law except through qualified caregivers.”
  3. Is there a DOH license or registration number for the clinic or physician or the dispensary? I’d include that if there is.
  4. Finally, is there a way that any website that might be included in the ad be geo-located to the state of Florida and to viewers over the age of 18?  Not sure if this is possible but wanted to mention.

Q. One of our clients received an email from a company that sells plaques commemorating an article about the client written in our paper. The plaque features the article and photographs in their entirety as well as our logo. Does this violate copyright law? It seems like it violates the test for fair use as they would profit from this. I would also note that our paper actually has its own commemorative product which the client purchased thinking they were ordering the other company’s product. They were disappointed that what they received wasn’t what they thought. We are investigating to make the product style similar to what the competing company offers.

A.  I think this does infringe on the paper’s ownership of the copyright in the written material and rights to the logo. You could send them a short letter requesting them to stop in order to protect your own plaques. (On the other hand, if this were a case where you did not provide such products, you might not want to send such a letter since these types of commemorative products seem to indirectly encourage buyers to appreciate and to read the paper—but, again, that is not the case here.)

We ran this by Jim McGuire at Thomas & LoCicero and he suggested the following succinct language that might be helpful:

The [newspaper] is the owner of the copyright in certain published articles as well as the trademark and design of certain marks [the newspaper] has been using since _______.

It has come to our attention that your company has been using such [newspaper] material and marks in connection with plaques for sale.  The use of this material constitutes copyright and trademark infringement. The consequences of such infringement are significant.

We hereby demand that you cease and desist from using, copying, or displaying [newspaper] copyright material and marks.  Please respond to this email by _________ to confirm that you have ceased using this material.  We would prefer to avoid litigation over this matter, but reserve all rights and remedies available under law.

Thank you for your attention to this matter.

Q. What’s the latest on plastic bag bans in Florida? I just read an article in our local paper that our city is looking at passing a styrofoam and plastics ban. I know this is starting to pick up steam in many places.  My question, have you seen or read anything in our or other local ordinances that would affect our use of newspaper plastic delivery bags? While current delivery bags (in the industry) are recyclable, what is not available (and my understanding major cost prohibitive) are bio-degradable bags…ones that would naturally decompose. While our ordinance seems targeted at more retail bags, we don’t want a badly written ordinance or a bad intentioned ordinance to cause us problems.

A. This question has been addressed in a previous e-bulletin article but it is worth updating and expanding upon. Plastic bag bans have been proposed by a handful of local governments around the state and the trend seems to be increasing. You are wise to keep an eye out for such regulatory activity in your coverage area to make sure proposals do not (intentionally or unintentionally) contain language that might be construed to restrict newspaper bags or wrappings.

By way of brief background, in 2010, the Florida Legislature pre-empted the regulation of plastic bags, thus preventing local governments from regulating in this area until it had the chance to consider DEP studies.  However, in 2017, the City of Coral Gables moved forward on its own and challenged that preemption by passing an ordinance that banned “single use carry out” plastic bags. The ordinance was challenged by the Florida Retail Federation but the trial judge rejected the challenge and said the state had dragged its feet too long in establishing rules and upheld Coral Gables’ ordinance. The judge’s ruling was appealed to the Third DCA and as of several weeks ago the matter was still pending before that appeals court.

In the meantime, several other local governments have passed resolutions in support of banning plastic bags or have considered but postponed bans pending the outcome of the appellate case.  Further, at least one local government, the City of Gainesville, was actively finalizing a “single use, carry-out” plastic bag ban which passed its first reading in December but does not appear to have been finalized.  Although Gainesville’s initial language was limited to “food service providers” and “retail establishments” that supply “carry-out” bags, and thus does not extend to newspaper bags, the City’s action does highlight concerns that other jurisdictions might pass broader language that could possibly be construed to outlaw newspaper bags.

As a result, it is important to remain vigilant about local government activity in this area. If your city or county considers such a ban, be sure the language is not broad enough to include newspaper bags. Even better, support the ordinance including a specific exemption for such bags, as did the Coral Gables’ ordinance.  See sections 62-245(b)(4), 34-191(c)(6).

If you run into any local issues, feel free to call Sam.

Finally, regarding the latest state law developments, a Senate bill was filled last session (SB 88) to do away with the state’s bag preemption but the bill did not move very far, failing to get a hearing in committee.