Colorado Bill Banning Social Media MJ, Drug Posts Raises Constitutional Concerns
Colorado Considers Content Regulation Bill Amidst Concerns Over Social Media Censorship.
While lawmakers have recently updated a new piece of legislation that would ban social media users from positively mentioning or promoting cannabis and other drugs, critics argue that the bill’s language is too far-reaching and could violate the First and Fourth Amendments.
Since states across the country first began legalizing cannabis, the ability for cannabis-related businesses to advertise on social media — or even mention or show cannabis products — has remained a contentious issue.
Many platforms will quickly remove cannabis business accounts once they catch wind of their content, leaving professionals with limited access to their audience and ultimately having to jump through hurdles like self-censorship to maintain their accounts. Some have also questioned if the consistent censorship surrounding cannabis and other drug content may lead to gaps in education or information encouraging harm reduction.
Despite these concerns, there remains a prevailing push to ensure children are not exposed to cannabis marketing and that reform as a whole does not encourage use among people under the legal age.
Colorado is currently caught in the middle of this push and pull, as lawmakers are working to advance legislation that would force social media platforms to ban users for talking positively about, promoting or advertising cannabis and cannabis products online, along with other regulated drugs and substances.
Colorado’s Polarizing Content-Regulation Bill
The bill, SB24-158, is currently facing criticism from multiple angles.
The legislation was recently amended to include language saying that “a social media platform may allow a user to promote, sell, or advertise medical marijuana or retail marijuana to users who are at least twenty-one years of age,” so long as the content is in compliance with state cannabis laws, Marijuana Moment reports.
Members of the Senate Committee on Business, Labor and Technology ultimately approved the amended bill unanimously, advancing it to the Appropriations Committee.
Still, some critics argue that the revised legislation does not adequately address concerns around other substances, like psilocybin — which Colorado voters decriminalized and legalized for therapeutic use in 2022 — alongside hemp-derived products or over-the-counter cough syrups.
As it stands currently, the bill would restrict promotion of hemp-derived products with more than 1.25 mg of THC or a CBD-to-THC ratio of less than 20:1. Most other hemp-containing products meant for human consumption that are not a dietary supplement, food, food additive or herb would also be restricted.
R Street Institute’s Shoshana Weismann called out some of the issues in the bill’s initial language, stating that it has some “potentially disastrous quirks.” Speaking with Marijuana Moment, Weismann referenced that the updated bill would prevent social media users from promoting substances like Nyquil or anti-anxiety medications.
“And if you promote those medications, you will be reported to law enforcement,” Weismann told the publication via email. “That is asinine.”
Social Media Age Verification, Data Considerations
So what about the cannabis exemption for those over 21? Does allowing companies to advertise specifically to those of legal age act as a proper workaround?
The bill states that social media companies must “use a commercially reasonable process to verify each user’s age” and “retain any information obtained for age verification purposes only for the purpose of compliance and for no other purpose and to dispose of such information securely after age verification is complete.”
In a recent blog post, Weismann notes that this process is not only expensive for businesses but also would require Colorado social media users to upload sensitive information to any given social media site they use.
“Although the bill requires platforms to dispose of this information once a user’s age is verified, the rule does not apply to third-party verifiers — rendering enforcement against them nearly impossible. Further, it doesn’t stop nefarious actors who would seek to hack such valuable information,” Weismann writes.
The bill mandates companies to retain “any data and metadata concerning users’ identities and activities” for one year, and Weismann argues that this only makes data more enticing and accessible for hackers.
Noting the potential First Amendment and free speech violations of the bill, Weismann also references the bill’s language prohibiting social media companies from alerting users “to the fact that a law enforcement agency is investigating the user’s activity and account,” arguing that this violates Fourth Amendment principles.
“This means that if someone is unaware the government is investigating them due to what is, in effect, a legislatively mandated gag order, they cannot fight government actions or exercise their rights,” Weismann states. “While these orders may be necessary in certain cases, it shouldn’t be an across-the-board call.”
Unanswered Questions and Uncertain Outcomes
There are a number of other potential scenarios the legislation could affect that lawmakers must still answer to.
For example, it’s still unclear as to whether a medical patient posting about their cannabis use to social media would be banned under the legislation. Even someone posting that an over-the-counter cough syrup helped them to feel better, or Colorado Gov. Jared Polis’ (D) recent touting of the state’s emerging psychedelic industry as a positive and beneficial move, could potentially be banned under the language of the bill.
The bill’s sponsor, Sen. Chris Hansen (D) told Marijuana Moment last month that he was “working on answers” to these questions.
Should the legislation pass, social media companies would need to update their policies and publicly post them on or before July 1, 2025. Companies would also need to submit annual reports to the state attorney general to confirm “whether the current version of the published policies contain definitions and provisions relating to illicit substances.”
