A Pierce County Superior Court judge has ruled unconstitutional a state law that prohibits doctors and other medical professionals from mentioning medical cannabis in their advertisements.
In a ruling filed Friday, Judge Elizabeth Martin said the law violates both the state and federal constitutions by curtailing free speech. The state might have an interest in regulating such advertising, but banning it outright is unacceptable, Martin said.
“I find the statute impermissibly overbroad as it chills even informational speech aimed solely at public education,” Martin said in a written decision.
The ruling came in a case brought by Pierce County osteopath Scott Havsy.
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He took the state to court last year after the state Department of Health sanctioned him for advertising on the Web and in printed publications his willingness to authorize patients’ use of medical marijuana.
The sanctions have been on hold while the court case plays out.
Havsy, who’s practiced for more than 30 years, has developed a reputation as a go-to guy for people seeking cards that authorize them to possess marijuana for medical reasons.
His attorney, Mark G. Olson of Everett, argued in pleadings that the state’s ban hindered patients’ ability to find doctors willing to provide authorization cards to people seeking to use cannabis for medicinal purposes.
“The only restrictions that should be placed on professional advertising are to be sure the advertising is not false or misleading,” Olson argued. “Other than that, when the government restricts advertising by professionals, it places a chilling effect on the free flow of information, especially on the Internet.”
The state was represented by assistant attorney general Joyce A. Roper.
“Dr. Havsy cannot claim constitutionally protected commercial speech in his advertisement for the medical use of marijuana because marijuana is illegal under federal law and the medical use of marijuana remains illegal under state law,” Roper argued in her own pleading.
“Free speech protections do not extend to advertisements for an illegal product or activity.”
Martin sided with Havsy.
“I find that the restriction set forth in the statute at issue is far more extensive than necessary as it bars any advertisement in any form, regardless of the message, format, context, etc.,” the judge wrote in her decision.
“The result of this statute is that the public cannot be informed by any health care provider, including Dr. Havsy, as to whether that provider is even available or willing to perform the required medical exam for the certificate of use.”
Martin went on to say that she recognizes “the state of Washington and its citizens have embarked on what the state has characterized as a ‘grand national experiment’ ” with regard to the legalization of marijuana and further recognizes that the existing medical marijuana laws are not entirely reconciled with the recreational use of marijuana legalized by Initiative 502.
“I do not take lightly the import of this decision and expect that this ruling will not be the final word on the subject,” Martin said.