From the Legal Hotline (877-NEWS-LAW)

Editor’s Note: The following are several questions from our Legal Hotline Archive. New hotline Q and A’s will resume in the next edition of the e-Bulletin.

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 neighboring newspapers was asked to remove a Facebook post they made citing copyright infringement. They used the built-in Facebook share feature to share an weather meme posted by a local television station to their Facebook feed. The image included the channel’s logo, and the post in Facebook was accompanied with the normal Facebook information which identifies the original source, etc. Additionally, the newspaper added that it was courtesy of the television station. The newspaper received a phone call from the television station that the newspaper had to take it down. The post had been shared by individuals too, who, I would imagine were not contacted to remove their sharing of the image.

As I understand this qualifies as fair use and the newspaper did not need to remove the share from their Facebook feed. Is this fair use or does the television station have the right to dictate the newspaper to remove the shared post?

A. Jim McGuire at the Thomas LoCicero firm is expert in these matters. Jim agrees that the newspaper appears to be authorized to use the material. Once the station posted the material on Facebook and put that material in a position for others to like or share, they can’t well claim it is a copyright violation for others to do so. The Facebook terms of use permit Facebook to use any materials the station posts. One of the things that Facebook does is make the material accessible for others to like or share. That seems to be what is happening here, so the station seems to have consented to it. At the same time, unless it is critically important, the newspaper might want to avoid the hassle of a legal dispute by removing it.

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. We have a local county commissioner who seems to be confused about his role as an elected official and that of a public information officer. What are the dangers of an elected official regularly posting county business on social media, especially in regards to things coming up before the commission? Can an elected official have dialogue on social media regarding issues that may come up for a vote?

The most recent example took place last night. In an on-line conversation, the commissioner talked about complaint forms that should be filled out by those who have concerns about garbage collection. In one of his comments he said, “a few commissioners (3 to be exact) will be meeting with some of the waste collection company execs this week to talk about a few issues and possible ideas.” No notice to the press. We are in the process now of trying to find out the other two commissioners who are attending and if this is a meeting that the county PIO is aware of.

A. The Sunshine Law requires boards to meet in public and they may not take action on or engage in private discussions of board business via written correspondence, e-mails, text messages, or other electronic communications. Regarding social media and Facebook in particular, commission members may not engage on the city’s Facebook page in an exchange or discussion of matters that foreseeably will come before the board or commission for official action. Ago 09-19. (“While there would not appear to be a prohibition against a board or commission member posting comments on the city’s Facebook page, members of the board or commission must not engage in an exchange or discussion of matters that foreseeably will come before the board or commission for official action.”)

Q. As for the previous question about Facebook, I should have said that it is the commissioner’s personal FB page, not the county’s FB page. Is there any difference there?

A. The same thing goes for personal Facebook. The commissioner can’t use it to engage with other commissioners about public business.