Let us assume Congress decided it was not in the best interests of society for the criminal justice system to deal with the sale, purchase, possession or use of alcohol, tobacco and marijuana products. Congress could also find that it was equally in the public interest that manipulative advertising should not be allowed to tempt people into purchasing the products.
In arriving at these decisions, Congress could hold hearings and consider the factual evidence weighing on the issues. It would not be unreasonable for Congress to conclude that consumption of these products is inherently more harmful, than beneficial, to individual users and society in general. Effective prevention of use in a balanced system of justice can rely on prohibiting advertising of a product, rather than prohibiting its sale and possession.
Although it is difficult to imagine, Congress might find the political courage to actually represent the voters and resist the inevitable lobbying campaign by the industries involved, including the mass media that profits from advertising. Constitutional legislation could be passed prohibiting the advertising and promotion of inherently dangerous products.
Would such a law benefit American society? The government would not punish people for their personal choice to indulge in potentially harmful products, it would just prevent the producers of the products from inducing them to do so. Wine would still be available for those wanting to sip their glass a day to keep the doctor away, but young people would not be enticed to chug the latest sugar-laced wine coolers.
Essentially, the advertising and promotion of risky products are inherently false and misleading, even if they truthfully list price differences and promote brand logos. Consumers may think products are safe, if the government allows them to be advertised. Why should anything requiring a warning label be advertised?
Once the concept is established that it is better to disallow advertising of alcohol, tobacco and marijuana products rather than to criminalize their sale, purchase, possession or consumption, there are other similar products Congress might want to consider for inclusion.
Should gambling, including state-sponsored lotteries, be advertised to compulsive gamblers and the poor, who can least afford the risk? Should prescription drugs be directly marketed to patients, especially for off-label use? Should video games, movies and music containing adult-level violence be marketed to children? Should hard-core, particularly violent, pornography, be advertised at all?
It remains to be seen whether corporations should have any constitutional rights, particularly First Amendment rights of free speech and commercial advertising. But for now, a good first step would be to prohibit inherently harmful advertising from all sources.
The best time to restrict or eliminate the advertising of marijuana is when the initial decision is being made to legalize the product, before it achieves legal status and becomes entrenched in the marketplace.
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