If it’s legal to sell a product, it’s also legal to talk about that product. But not in Mississippi—at least not if the product is medical marijuana.
In 2022 Mississippi joined the growing number of states to legalize medical marijuana. And entrepreneur Clarence Cocroft recognized that a medical marijuana dispensary would be an excellent business opportunity. He opened Tru Source Medical Cannabis, LLC—the first state-licensed, Black-owned medical marijuana dispensary in Mississippi. The family-operated business has been successful, but an advertising ban imposed by the state Department of Health (DOH) has severely hampered it.
The Mississippi law legalizing medical marijuana lays out a scheme authorizing the cultivation, tracking, and sale of medical marijuana with a valid prescription. But the law also gives DOH discretion to regulate advertising for dispensaries, and the department has exercised that discretion aggressively: It has completely prohibited dispensaries from advertising and marketing in any media at all. Essentially, dispensaries are only permitted to have signs on their own property and maintain a basic homepage on the web, making it nearly impossible for patients to find the dispensaries best suited to their needs.
Like all entrepreneurs, Clarence wants to tell consumers about his business. He wants to be able to tell patients where it’s located, what he sells, and how much it costs. But he can’t, despite his constitutional right to do so.
The First Amendment protects the right to exchange truthful information about legal products. Medical marijuana is legal in Mississippi and the federal government has said it won’t enforce federal marijuana laws against state-legal medical-marijuana businesses. That means that no law—state or federal—justifies the state’s censorship here. Mississippians have a constitutional right to information that will inform their purchasing decisions. And the state has no interest in interfering with that right. That’s especially true here, where the state’s apparent goal is to manipulate consumers’ behavior by restricting their access to truthful information.
The advertising ban impermissibly harms Clarence’s business because it unconstitutionally restricts his speech. That’s why Clarence has teamed up with the Institute for Justice (IJ) to file a federal lawsuit challenging DOH’s advertising ban. Victory in this case will reaffirm that the First Amendment prevents the state from censoring people who want to speak about legal products and services and ensure entrepreneurs like Clarence can promote their legal businesses.
Clarence Cocroft Opens Tru Source
Clarence Cocroft is the embodiment of the American Dream. The son of a Mississippi farmer, Clarence earned a master’s degree in forensics and biotechnology, and helped write science textbooks for many years before deciding to open Tru Source. He didn’t open Tru Source simply because he saw an opportunity. He started the business because he wants to comfort patients. And he believes it’s important for Black men like himself to benefit from the legalization of an industry that has led so many Black men to be locked up.
Once medical marijuana was legalized in Mississippi, Clarence filed the first permit application in the state. The process wasn’t easy. He worked with lawyers and other experts to ensure that his business met all of the requirements for a dispensary, and after overcoming obstacle after obstacle, he was finally able to open Tru Source Medical Cannabis in Olive Branch, MS.
Tru Source, which is family operated, serves a diverse clientele of patients. And Clarence knows each of his patients well, striving to make sure they get the best service possible. Tru Source’s patients are happy with the service they receive, but Clarence has struggled to grow his business because the state’s advertising ban prevents him from reaching new customers.
When he started the dispensary, Clarence thought he’d be able to educate potential customers about his business through the same types of advertising—like radio ads or mailing lists—that any other business would do. In fact, he hoped to promote Tru Source on the various billboards he owns around town. But because medical marijuana advertising is banned, he instead rents those billboards to others. He may promote casinos and strip clubs on his billboards, but not his own dispensary.
Being able to provide potential clients basic information about Tru Source—like its location, products, and prices—is important to ensure the business’s continued success. Because of the zoning regulations imposed on medical marijuana businesses, Clarence had to change the location of his dispensary from a high-traffic street near a popular Starbucks to a much harder to find location. Tru Source is in an industrial park away from any major thoroughfare. There’s no foot traffic and most vehicles that drive by are semitrucks. Without off-site advertising, new customers can’t find Tru Source.
The Mississippi Department of Health Bans Advertising Medical Marijuana Dispensaries
The law legalizing medical marijuana allows for the cultivation of medical marijuana to be sold to prescription holders in state-licensed dispensaries like Tru Source. 1 But the statute leaves the authority to regulate advertising to DOH. 2 A few things are expressly allowed by statute—regulators cannot prevent a marijuana dispensary from having an appropriate sign or a basic website—but otherwise, DOH has a free hand to regulate advertising as it pleases. 3 And it has used it with gusto, in two different ways.
One part of the department’s rules seems to restrict marijuana advertising similarly to how the federal government restricts advertising tobacco. 4 This part of the rule forbids any ads that might appeal to minors—like cartoons—or that makes health, medical or therapeutic claims. 5 Clarence has no issue with these regulations; he has no interest, for example, in marketing to children.
But the other part of the rules takes the advertising restrictions to an extreme: it prohibits advertising entirely. It prohibits dispensaries “from advertising and marketing in any media,” including newspapers, television, magazines, social media, billboards, and email lists. 6 This flat ban on advertising in any media unconstitutionally prevents legal businesses like Clarence’s from providing customers basic information about his products. Clarence can’t inform clients about where his business is located or what products it sells.
The First Amendment Protects Business Owners’ Right to Advertise their Legal Businesses
Mississippi’s flat ban on advertising medical-marijuana dispensaries violates Clarence’s right to free speech. That’s because even though the First Amendment does not extend to false speech or speech that proposes a criminal transaction, the Supreme Court has made clear that the First Amendment does protect the right to exchange truthful information about legal products. In other words, if a product is legal to sell, it is legal to discuss. And because Mississippi has legalized medical marijuana, it has relinquished any legitimate interest in prohibiting entrepreneurs like Clarence from speaking about it.
The First Amendment takes as a given that Americans are adults responsible for their own choices, and the government may not restrict commercial speech because it is worried about how consumers will respond to true information. 7 That should hold true for medical marijuana in Mississippi, even as cannabis remains illegal under federal law. That’s because the federal government has declared that it will not prosecute state-legal medical marijuana operations, a policy decision that opened the door for states to adopt medical marijuana programs without fear of federal enforcement. 8 But states doing so must still only enact laws and regulations consistent with the constitutional limitations on their power to regulate lawful businesses. And so Mississippi cannot constitutionally restrict advertising about a product like medical marijuana just because the federal government still regulates it more strictly.
The department’s flat ban on all advertising restricts more speech than necessary. Mississippi already has laws on the books to prevent medical marijuana businesses from doing things like advertising to children. 9 The state does not have the power to extend those bans to legal consumers of Tru Source’s products.
This case is about the right of all entrepreneurs to speak truthfully about the legal goods and services that they offer. The First Amendment does not allow the state to censor sellers of legal goods and services on the grounds that what they sell might be prohibited by another, overlapping jurisdiction.
The plaintiffs are Clarence Cocroft and his business, Tru Source Medical Cannabis, LLC, a Mississippi limited-liability company in good standing.
The defendants in this case are Mississippi Department of Revenue Commissioner Chris Graham, Mississippi Alcoholic Beverage Control Bureau Chief of Enforcement Pat Daily, and State Health Officer for the Mississippi Department of Health Dr. Daniel F. Edney, each of whom is sued in their official capacities.
This case raises a claim under the First Amendment, seeking to reaffirm that commercial speech is protected by the First Amendment and to establish that paternalistic motivations are not a proper justification for regulating commercial speech.
The Litigation Team
The litigation team consists of Institute for Justice Senior Attorney Ari Bargil and Institute for Justice Attorney Katrin Marquez. They are being assisted by their local counsel, Mike Lewis.
About the Institute
The Institute for Justice (IJ) is the national law firm for liberty, and the national leader in protecting commercial speech—especially for small businesses. IJ has successfully challenged unconstitutional advertising regulations across the country, including in Mississippi. For example, IJ defeated the FDA’s and Florida’s bans on using the words “skim milk” to describe pure, additive-free skim milk, 10 and Mississippi’s ban on the words “veggie burgers.” 11 IJ has also challenged restrictions on signs, including a gaming store’s inflatable character in Orange Park, Florida; 12 a donut shop’s mural in Conway, New Hampshire; 13 and many others.