California Court Rules BCC Exceeded Authority by Allowing Advertising Near Highways

By Kelsey Middleton

Dec 2, 2020

On November 20, Judge Ginger E. Garret of the San Luis Obispo Superior Court ruled that the BCC exceeded its rulemaking authority by allowing any advertising to be seen on interstate highways and state highways crossing the California border because the language and intent of Prop 64 regarding advertising unambiguously intended and implemented a blanket ban on advertising in such locations.

The Ruling

The petitioner, a San Luis Obispo construction worker, filed suit on the basis that the allowance of cannabis billboard advertisements unnecessarily exposed him, his children, and millions of other people to cannabis advertising. The petitioner sought injunctive and declaratory relief from the continued allowance of advertising on highways. Their position was that Advertising Placement Regulation (BCC 16 CCR 5040(b)(3)), providing that all outdoor signs, including billboards, must not be located within a 15-mile radius of the California border or an Interstate Highway or on a State Highway that crosses the California border, is invalid because it is inconsistent with the Advertising Placement Statute (BPC 26152(d)), providing that a licensee must not advertise or market on a billboard or similar advertising device located on an Interstate Highway or on a State Highway which crosses the California border. The Advertising Placement Statute was adopted pursuant to MAUCRSA and Prop 64.

The crux of the petitioner’s argument was that the Advertising Placement Statute unambiguously states that cannabis or cannabis products are entirely prohibited from being advertised or marketed on billboards located anywhere on interstate highways and state highways which cross the California border, that this was the intent of the voters and the legislature, and that by failing to implement a total ban on ads in such spaces, the BCC has put advertising interests above the protection of the public.

The BCC advanced a few arguments in response, but most relevant was the BCC’s assertion that its interpretation of the statute was reasonable because it was ambiguous—the ambiguity being the extent of advertising prohibitions on highways and the failure to define interstate highways and state highways. It further argued that its regulation “avoids the absurd consequences of removing any geographic limit on the advertising ban and that the statute must be interpreted to refer only to highways in fairly close geographic proximity to the border.” The Court did not agree that the statute was ambiguous, nor did it accept BCC’s construction of the statute as allowing any form of advertising near highways.

Despite BCC’s assertion that voters “never articulated an unequivocal ban on licensees engaging in truthful marketing and advertising on billboards,” the Court held that BCC exceeded its authority by promulgating the regulation because of its clear inconsistency with the Statute, citing its expansion of the scope of permissible advertising to include most of California’s State and Interstate Highway system.

The Impact

The Court’s ruling will impact 35 interstate highways in California, including Interstates 5, 10, and 80. As Prop 64 only pertains to interstate highways and state highways as listed in Section 300-635 of the Street and Highways Code that cross the California border, billboards that advertise cannabis on highways solely within the state will remain permitted.

Currently, it is unknown whether BCC intends to appeal the ruling. VS is continuing to monitor this case and any changes to California law regarding billboard advertising and will provide notification of any further developments as they arise.

Please reach out to a member of the VS California team with any questions you may have about the implications this ruling may have for your business’s marketing and advertising strategy.

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