City Council
MEETING DATE: 5/10/2017
TITLE:
Title
Regulation of Signage Advertising Cannabis
End
FROM:
Erica Vega, Assistant City Attorney
RECOMMENDATION:
Recommendation
Receive information and provide direction on how to regulate cannabis signage in the City.
Body
BACKGROUND:
The City Council has not adopted any regulations on commercial signage specific to cannabis businesses. Therefore, cannabis businesses are subject to the same sign regulations as all other businesses, as set forth in Chapter 9.62 of the Code. As a general rule, a sign permit is required for all signage except for the those signs that are exempt (listed in Section 9.62.040). For cannabis businesses, window signs, wall signs, and flags that are on-site and meet the standards of the Code are exempt. Off-site signage is generally prohibited, but billboards are permitted pursuant to Section 9.62.070(A) of the Cathedral City Code. The City's sign billboard regulations do not apply to billboards on Tribal land. Signs that rotate or move, including human-held signs, are prohibited.
State law places some additional restrictions on cannabis signage in the City. Proposition 64 included an entire chapter on advertising and marketing restrictions applicable to non-medical cannabis (Business & Professions Code §§ 26150 et seq.). These provisions include restrictions on “advertising signs,” which is defined to mean billboards and other off-site advertising signs. There are no regulations on on-site signage. Proposition 64 prohibits billboards and other off-site advertising signs from being located along an “Interstate Highway or State Highway which crosses the border of any other state” and within “1,000 feet of a day care center, school providing instruction in kindergarten or any grades 1 through 12, playground, or youth center.” Business & Professions Code § 26152. In addition, Proposition 64 contains a provision that prohibits advertising in “broadcast, cable, radio, print and digital communications” unless “at least 71.6 percent of the audience is reasonably expected to be 21 years of age or older, as determined by reliable, up-to-date audience composition data.” Business & Professions Code § 26151(b). It is not clear to what extent this provision will be interpreted to apply to billboards or other off-site signs, whether print or digital. Proposition 64 also contains content regulations on cannabis advertisements, including signage, including prohibitions on false or misleading statements (including health claims), statements regarding the appellation or origin of the product, and advertisements that contain elements that primarily appeal to minors.
The MCRSA does not contain restrictions on medical cannabis advertisements and marketing. AB 64 is currently pending in the Legislature and proposes to amend the MCRSA to add advertising and marketing restrictions that are nearly identical to those in Proposition 64. One key difference, however, is that billboards are proposed to be prohibited along all interstate highways and state highways, regardless of whether the state highway crosses the border into another state.
DISCUSSION:
The City Council may want to adopt regulations applicable to cannabis signage that go beyond what is already in place. Any such regulations must satisfy the test the Supreme Court laid out in Central Hudson Gas & Electric v. Public Service Commission of New York to determine whether a governmental restriction on commercial speech is permissible under the First Amendment. Though commercial cannabis advertising is not protected by the First Amendment, this same test is used by the California courts to determine whether speech is protected under the California Constitution's free speech clause. The Central Hudson test is as follows:
1. Does the speech concern lawful activity and is not misleading?
2. Has the government asserted a substantial interest in regulating the speech?
3. Does the regulation directly advance the governmental interest asserted?
4. Is the regulation not more extensive than is necessary to serve that interest?
The courts have upheld restrictions on alcoholic beverage and tobacco advertising on billboards, including the City of Oakland’s prohibition on such advertisements where children “live, play, and go to school.” Eller Media Co. v. City of Oakland, 2000 WL 33376585 (Dec. 7, 2000). In 1997, the Oakland City Council adopted Ordinance 12025 (currently codified in Section 14.04.280 of the City’s Code) prohibiting billboards advertising alcoholic beverages and tobacco products except in certain commercial zones. In those zones where they are allowed, the billboards cannot be facing toward property that is within a zone where such billboards are prohibited, or be within 1,000 feet of schools, City-owned youth recreation centers, licensed child care facilities, places of worship, and a specific City-owned park (Raimondi Field).
However, it should be noted that the United States Supreme Court held a ban on billboard advertising of smokeless tobacco within 1,000 feet of schools was unconstitutional because the State (Massachusetts) failed to show that the regulation was no more extensive than necessary to achieve the State’s purpose. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). Therefore, any locational restriction on cannabis signs by the City should be well supported by evidence documenting the City’s interest, how that interest is furthered by the regulation, and how their regulation is not overly broad.
FISCAL IMPACT:
None
ATTACHMENTS:
None