71 Am. U. L. Rev. 2157 (2022).
From “Reefer Madness” to “This Is Your Brain on Drugs,” Americans have lived through decades of anti-cannabis propaganda. Legalization is poised to turn this information environment on its head, unleashing a torrent of corporate-funded, pro-cannabis misinformation that regulators cannot prevent or dispel. This appears to be a problem caused by the Supreme Court’s creation and expansion over the past fifty years of First Amendment protections for corporate and commercial speech. Although these doctrines contribute substantially to the problem, this Article shows how it originates in lax antitrust policy rather than
expansive First Amendment jurisprudence.
If Congress follows current legalization trends and facilitates the creation of a consolidated commercial cannabis industry, misinformation about marijuana will follow. That industry will have the opportunity, incentive, and ability to draw on successful disinformation campaigns waged by other big businesses, including the tobacco and food-and-beverage industries, to corrupt both the public’s understanding of cannabis science and the science itself. Even with the benefit of foresight, legal institutions are hamstrung in their response to this problem. The First Amendment’s protections of corporate and commercial speech foreclose many of the regulatory options. Several options remain, including fraud prosecutions, government speech identifying cannabis’s health effects, and administrative regulation of labeling and advertising. But these responses are incomplete, inadequate, and vulnerable to industry capture, constitutional invalidation, and corporate evasion.
Ultimately, misinformation about marijuana is an unavoidable cost of a consolidated cannabis industry. Even abolishing the corporate and commercial speech doctrines, although helpful, would not get at the root problem: excessive private power. To effectively address the threat of corporate-funded misinformation about cannabis science, Congress must prevent the creation of a consolidated industry by ratifying and bolstering the existing state bans on interstate and international commerce in cannabis, among other measures.
* Senior Counsel, New York City Law Department. Former Research Fellow, Harvard Law School, Project on Psychedelics Law and Regulation. J.D., New York University, 2015. B.A., Loyola University Maryland, 2012. The ideas expressed in this Article do not represent those of any organization. Thanks for helpful suggestions and discussions to Rachel Barkow, Genevieve Lakier, Emily Winston, Mike Vitiello, Mason Marks, David A. Simon, Uzezi Abugo, Kiliaen Strong, Alex McDowell, Lidia Angelatos, and Hercules Angelatos. Thank you also to the editors of the American University Law Review.