United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED November 22, 2024 No. 24-60086 Lyle W. Cayce ____________ Clerk Clarence Cocroft; Tru Source Medical Cannabis, L.L.C.,

Plaintiffs—Appellants,

versus Chris Graham, in his official capacity as the Commissioner of the Mississippi Department of Revenue; Riley Nelson, in his official capacity as the Chief of Enforcement of the Mississippi Alcoholic Beverage Control Bureau;Doctor Daniel P. Edney, in his official capacity as State Health Officer for the State of Mississippi Department of Health,

Defendants—Appellees. ______________________________

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 3:23-CV-431 ______________________________ Before Smith, Clement, and Higginson, Circuit Judges. Jerry E. Smith, Circuit Judge: Clarence Cocroft and his medical-marihuana dispensary, Tru Source Medical Cannabis, L.L.C., appeal a judgment of dismissal of their First Amendment challenge to Mississippi’s near-total restriction on the advertis- ing of medical marihuana. The plaintiffs seek declaratory and injunctive relief against several state defendants in their official capacities. The plain- Case: 24-60086 Document: 53-1 Page: 2 Date Filed: 11/22/2024

No. 24-60086

tiffs contend that the First Amendment protects their right to engage in medical-marihuana advertising because Mississippi law permits the under- lying commercial transactions. This case presents an issue of first impression in our Circuit. The par- ties agree that the speech at issue is commercial and that the Central Hudson test governs our analysis. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557 (1980). As a threshold matter, commercial speech receives no First Amendment protection if the underlying commercial con- duct is illegal. The Controlled Substances Act (“CSA”), 21 U.S.C. § 801 et seq., prohibits activities involving marihuana—including activities involve- ing medical marihuana—nationwide. And the Supremacy Clause means that the CSA is the law in Mississippi regardless of what state law might say. Marihuana is therefore illegal in Mississippi, and the state faces no constitu- tional obstacle to restricting commercial speech relating to unlawful transac- tions. Accordingly, we affirm the judgment of dismissal.

I. Since 1970, the federal CSA has prohibited the manufacture, distribu- tion, dispensing, and possession of marihuana. Id. §§ 812(Sched- ule I)(c)(10), 841(a)(1), 844(a). That law additionally criminalizes the adver- tising of marihuana. Id. §§ 812(Schedule I)(c)(10), 843(c). In 2022, Mississippi enacted the “Mississippi Medical Cannabis Act,” Miss. Code Ann. § 41-137-1 et seq., which authorizes the sale and use of marihuana for certain medicinal purposes. The Act creates an exten- sive regulatory and licensing framework, and it charges the Mississippi Department of Health (“MDOH”) and the Mississippi Department of Rev- enue (“MDOR”) with administering the program. Miss. Code Ann. § 41-137-7. The Act requires both Departments, in that role, to promulgate rules and regulations, including “[r]estrictions on the advertising, signage,