- Paul Boyle
In a statement issued in mid-December, the U.S. Postal Service declared that it is illegal to enter mail, including newspapers, which contain advertisements offering to buy or sell marijuana and other controlled substances, no matter what local state law may say about marijuana use. But, at the same time, USPS clarified that local postmasters and managers of Business Mail Entry Units lack the authority to declare particular written matters non-mailable on account of their content, and that they must accept such mailings if it is otherwise properly prepared.
The issue arose in late November, when the Postal Service’s Portland, Oregon, district took the position that a newspaper containing advertising for the sale of marijuana would be non-mailable, even in states (such as Oregon) in which marijuana has been legalized. After the Portland District’s position became public, several members of the Oregon congressional delegation, including Senators Wyden (D) and Merkley (D), asked Postmaster General Megan Brennan to clarify USPS’ policy on the mailability of newspapers containing marijuana advertising.
In a letter to the members of Congress, USPS General Counsel and Executive Vice President Thomas Marshall said that the federal Controlled Substances Act forbids using the mail system to transmit advertising for the sale or purchase of marijuana, even if such sale or purchase is allowed under state law. It also noted that the same federal law prohibits the placing in newspapers and magazines advertisements for the sale and use of marijuana. That many states now allow at least some marijuana uses is immaterial, the letter concluded, because USPS is part of the federal government and determines whether an item may be mailed or not based on federal, not state, law.
The Marshall letter also reminded postmasters and managers of Business Mail Entry that they are not authorized to determine whether a particular mailpiece (including a newspaper) is non-mailable, and may not refuse such pieces for mailing. Although mailers are responsible for complying with postal and non-postal laws and regulations, the letter noted that if a mailer insists on mailing a piece, postal personnel must accept it for mailing. In such instances, postal procedures call for postmasters and BME managers to report the piece to the Postal Inspection Service, which could refer it to law enforcement agencies for investigation.
Despite the USPS position, it is unclear whether a federal prosecution under the Controlled Substances Act for mailing a marijuana ad can occur, at least through September 2016. This is because the omnibus spending bill passed in December in the closing moments of the first session of Congress contained a provision that prohibits, through September 30, 2016, the Justice Department from preventing 40 named states, the District of Columbia, Guam, and Puerto Rico from implementing laws that authorize the use, distribution, possession, or cultivation of medical marijuana. In practice, this essentially codifies a current Justice Department policy of not enforcing the Controlled Substances Act in those states.
In any event, while the Controlled Substances Act prohibits the placing of a written advertisement, it does not specifically mention the publication of such an ad. Because the advertiser is responsible for placing the ad, it is a more likely target of any prosecution than a publisher. As with many matters coming out of Washington, however, this is less than certain.