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S. 4622 (117th): SAFE Advertising Act of 2022

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The text of the bill below is as of Jul 26, 2022 (Introduced). The bill was not enacted into law.

Summary of this bill

There is actually a North Carolina gospel music radio station, 1390 AM, with the call sign WEED.

Context

New Mexico legalized recreational marijuana use in June 2021, with legal sales beginning in April 2022. A U.S. senator from that state noticed that even though the product was now legal on a state level, sellers still couldn’t advertise on television or radio there.

That’s because television and radio stations require a license from the FCC (Federal Communications Commission) to operate. Since it’s a federal agency, they have banned marijuana ads on television and radio, since marijuana remains illegal on a federal level.

State-legal marijuana businesses can still …

II

117th CONGRESS

2d Session

S. 4622

IN THE SENATE OF THE UNITED STATES

July 26, 2022

(for himself and Mr. Merkley) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

A BILL

To establish protections for radio and television stations that provide advertising services to cannabis-related legitimate businesses and service providers for such businesses, and for other purposes.

1.

Short title; table of contents; purpose

(a)

Short title

This Act may be cited as the Secure And Fair Enforcement Advertising Act of 2022 or the SAFE Advertising Act of 2022.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents; purpose.

Sec. 2. Definitions.

Sec. 3. Safety for advertising.

Sec. 4. Protections for ancillary businesses.

Sec. 5. Protections under Federal law.

Sec. 6. Application of this Act with respect to hemp-related legitimate businesses and hemp-related service providers.

Sec. 7. GAO report.

(c)

Purpose

The purpose of this Act is to ensure access to advertising services from radio and television stations for cannabis-related legitimate businesses and service providers.

2.

Definitions

In this Act:

(1)

Cannabis

The term cannabis has the meaning given the term marihuana in section 102 of the Controlled Substances Act (21 U.S.C. 802).

(2)

Cannabis product

The term cannabis product means any article that contains cannabis, including an article that is a concentrate, an edible, a tincture, a cannabis-infused product, or a topical.

(3)

Cannabis-related legitimate business

The term cannabis-related legitimate business means a manufacturer, a producer, or any person or company that—

(A)

engages in any activity described in subparagraph (B) pursuant to a law established by a State or political subdivision of a State, as determined by the State or political subdivision; and

(B)

participates in any business or organized activity that involves handling cannabis or cannabis products, including cultivating, producing, manufacturing, selling, transporting, displaying, dispensing, distributing, or purchasing cannabis or cannabis products.

(4)

CBD

The term CBD means cannabidiol.

(5)

Hemp

The term hemp has the meaning given the term in section 297A of the Agricultural Marketing Act of 1946 (7 U.S.C. 1639o).

(6)

Indian country

The term Indian country has the meaning given that term in section 1151 of title 18, United States Code.

(7)

Indian Tribe

The term Indian Tribe has the meaning given the term Indian tribe in section 102 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 5130).

(8)

Manufacturer

The term manufacturer means a person who manufactures, compounds, converts, processes, prepares, or packages cannabis or cannabis products.

(9)

Producer

The term producer means a person who plants, cultivates, harvests, or in any way facilitates the natural growth of cannabis.

(10)

Service provider

The term service provider—

(A)

means a business, organization, or other person that—

(i)

sells goods or services to a cannabis-related legitimate business; or

(ii)

provides any business services, including the sale of advertising, the sale or lease of real or any other property, legal or other licensed services, or any other ancillary service, relating to cannabis; and

(B)

does not include a business, organization, or other person that participates in any business or organized activity that involves handling cannabis or cannabis products, including cultivating, producing, manufacturing, selling, transporting, displaying, dispensing, distributing, or purchasing cannabis or cannabis products.

(11)

State

The term State means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

3.

Safety for advertising

(a)

In general

The Federal Communications Commission may not—

(1)

with respect to an authorization relating to a radio or television broadcast station, deny, fail to renew for a full term or condition the authorization, decline to approve an application for authority to assign the authorization or transfer direct or indirect control of the licensee, require an early renewal application, or otherwise impair the authorization, because the station broadcast or otherwise transmitted advertising of a cannabis-related legitimate business or service provider, if the activities of the cannabis-related legitimate business or service provider were, at the time of the broadcast or other transmission of advertising, authorized in the State, political subdivision of a State, or Indian country in which the community of license of the station is located;

(2)

commence any proceeding against, issue a notice of apparent liability or inquiry to, or impose a forfeiture penalty on a radio or television broadcast station under title V of the Communications Act of 1934 (47 U.S.C. 501 et seq.) because the station broadcast or otherwise transmitted advertising of a cannabis-related legitimate business or service provider, if the activities of the cannabis-related legitimate business or service provider were, at the time of the broadcast or other transmission of advertising, authorized in the State, political subdivision of a State, or Indian country in which the community of license of the station is located; or

(3)

deny or designate for hearing any application for an authorization relating to a radio or television broadcast station solely because—

(A)

the applicant—

(i)

is or has been a cannabis-related legitimate business or service provider; or

(ii)

is an owner, officer, operator, or employee of a cannabis-related legitimate business or service provider; or

(B)

an owner, officer, director, or employee of the applicant, any parent entity of the applicant, or the applicant has provided or is providing services, including advertising services, equipment, or other support, for the operation of a cannabis-related legitimate business or service provider.

(b)

Labeling requirement

Subsection (a) shall only apply with respect to the advertising of products sold by a cannabis-related legitimate business if—

(1)

the advertisement—

(A)

contains a disclosure that states, This product has not been evaluated by the Food and Drug Administration. There may be health risks associated with consumption of this product.; or

(B)

complies with any applicable labeling requirements or other requirements adopted by the Surgeon General or the Food and Drug Administration for advertising of cannabis or cannabis products; and

(2)

the advertiser has reliable evidence that not less than 70 percent of the audience for the advertisement is reasonably expected to be not less than 21 years of age, with the burden of proof regarding the expected audience composition lying with the advertiser.

4.

Protections for ancillary businesses

For the purposes of sections 1956 and 1957 of title 18, United States Code, section 421 of the Controlled Substances Act (21 U.S.C. 862), and any other provision of Federal law, the proceeds from a transaction involving activities of a cannabis-related legitimate business or service provider shall not be considered proceeds from an unlawful activity or require the denial of Federal benefits solely because—

(1)

the transaction involves proceeds from a cannabis-related legitimate business or service provider; or

(2)

the transaction involves proceeds from—

(A)

cannabis-related activities described in section 2(3)(B) conducted by a cannabis-related legitimate business; or

(B)

activities described in section 2(10)(A) conducted by a service provider.

5.

Protections under Federal law

With respect to providing advertising service to a cannabis-related legitimate business (where the cannabis-related legitimate business operates within a State, a political subdivision of a State, or Indian country in which the cultivation, production, manufacture, sale, transportation, display, dispensing, distribution, or purchase of cannabis is allowed pursuant to a law or regulation of the State, the political subdivision, or the Indian Tribe with jurisdiction over the Indian country, respectively) or a service provider (wherever located), a radio or television station licensed to a community within a State, a political subdivision of a State, or Indian country in which the activities of the cannabis-related legitimate business promoted in the advertising service are allowed, a depository institution, insurer, or other entity that provides a financial or other service to such a radio or television station providing advertising service to a cannabis-related legitimate business or service provider, and the officers, directors, and employees of such radio or television station, depository institution, insurer, or other entity may not be held liable pursuant to any Federal law or regulation, including subsection (b) or (c) of section 403 of the Controlled Substances Act (21 U.S.C. 843)—

(1)

solely for providing such advertising service or related financial or other service; or

(2)

for further investing any income derived from such advertising service or related financial or other service.

6.

Application of this Act with respect to hemp-related legitimate businesses and hemp-related service providers

(a)

In general

This Act shall apply with respect to a hemp-related legitimate business or hemp-related service provider in the same manner as the Act applies with respect to a cannabis-related legitimate business or service provider.

(b)

Definitions

In this section:

(1)

Hemp-related legitimate business

The term hemp-related legitimate business means a manufacturer, producer, or any person that—

(A)

engages in any activity described in subparagraph (B) in conformity with—

(i)

subtitle G of the Agricultural Marketing Act of 1946 (7 U.S.C. 1639o et seq.) and the regulations issued to implement that subtitle by the Department of Agriculture, where applicable; and

(ii)

the applicable law of a State, political subdivision of a State, or Indian Tribe; and

(B)

participates in any business or organized activity that involves handling hemp, hemp-derived CBD products, and other hemp-derived cannabinoid products, including cultivating, producing, extracting, manufacturing, selling, transporting, displaying, dispensing, or purchasing hemp, hemp-derived CBD products, and other hemp-derived cannabinoid products.

(2)

Hemp-related service provider

The term hemp-related service provider—

(A)

means a business, organization, or other person that—

(i)

sells goods or services to a hemp-related legitimate business; or

(ii)

provides any business services, including the sale of advertising, the sale or lease of real or any other property, legal or other licensed services, or any other ancillary service, relating to hemp, hemp-derived CBD products, or other hemp-derived cannabinoid products; and

(B)

does not include a business, organization, or other person that participates in any business or organized activity that involves handling hemp, hemp-derived CBD products, or other hemp-derived cannabinoid products, including cultivating, producing, manufacturing, selling, transporting, displaying, dispensing, distributing, or purchasing hemp, hemp-derived CBD products, and other hemp-derived cannabinoid products.

7.

GAO report

(a)

Definitions

In this section—

(1)

the term small business concern has the meaning given the term in section 3 of the Small Business Act (15 U.S.C. 632); and

(2)

the term socially and economically disadvantaged individual has the meaning given the term in section 8(d) of the Small Business Act (15 U.S.C. 637(d)) and relevant subcontracting regulations prescribed under such section 8(d), except that women are presumed to be socially and economically disadvantaged.

(b)

Report

Not later than 1 year after the date of enactment of this Act, the Comptroller General of the United States shall—

(1)

conduct a study of cannabis-related legitimate businesses that—

(A)

are small business concerns; or

(B)

are owned by a socially and economically disadvantaged individual; and

(2)

submit a report on the results of the study conducted under paragraph (1) to Congress.

(c)

Contents

The report submitted under subsection (b) shall include—

(1)

an evaluation of whether cannabis-related legitimate businesses that are small business concerns or are owned by a socially and economically disadvantaged individual face systemic barriers to access service providers compared to other cannabis-related legitimate businesses; and

(2)

recommendations to Congress to facilitate the access of cannabis-related legitimate businesses to service providers, particularly cannabis-related legitimate businesses that—

(A)

are small business concerns; or

(B)

are owned by a socially and economically disadvantaged individual.