• by Erik Sass , Staff Writer @eriksass1, March 31, 2016

While marijuana is legal for recreational use in four states and the District of Columbia, and medicinal use in 19 others, marijuana advertising is another story.

Businesses can grow and sell cannabis, but can’t send commercial flyers or take out newspaper advertising because marijuana remains illegal under federal law. Under the current regulatory regime, anyone sending ads through the mail is liable to prosecution and the U.S. Postal Service is required to report them to the Department of Justice.

That may change.

California District 2 Representative Jared Huffman and seven other congressmen are asking the DOJ to publicly state it won’t prosecute businesses for sending pot ads through the mail, as long as they’re complying with state law.

The letter to U.S. Attorney General Loretta Lynch requests clarification of the DOJ’s plans for handling cases of marijuana advertising referred by the USPS, hopefully with an explicit statement that “that DOJ will not prosecute individuals who are placing advertisements for marijuana products in accordance with state law.”

In their letter, the lawmakers note that in 2013 the DOJ stated that it would not give priority to prosecuting businesses or individuals engaged in the sale of marijuana where it is legal under state law. Congress also passed a law forbidding the DOJ from devoting any resources to going after pot businesses in states where it is legal for medicinal purposes.

In December, the USPS announced a sweeping ban on marijuana advertising in all 50 states, declaring any publication containing ads for pot to be “non-mailable” everywhere in the country. The nationwide ban extends a regional ban previously announced by the USPS northwestern district headquartered in Portland, Ore.

However, under law, employees of the USPS (an independent public corporation chartered at the behest of Congress) can’t determine whether a particular item is non-mailable and remove it from the mail. Instead, they must send a warning to the entity who tried to mail it, whether a person or company, and then inform law enforcement about the item.

At the time the office of Oregon Senator Ron Wyden responded to the USPS statement: “We are working as a delegation to quickly find the best option to address this agency’s intransigence. We want federal authorities to respect decisions made by law-abiding Oregonians and small business owners in the state.

"Unfortunately, the outdated federal approach to marijuana as described in the response from the Postal Service undermines and threatens news publications that choose to accept advertising from legal marijuana businesses in Oregon and other states where voters also have freely decided to legalize marijuana.”