The COVID-19 pandemic has resulted in dozens or hundreds of city, county, and state stay-at-home/shelter-in-place orders requiring closure of non-essential businesses across the county.  Most if not all such orders exempt particular types of businesses, including stores selling groceries, medical supplies, and other necessities.  Many also require specific social distancing, hygiene, and sanitization procedures for stores remaining open.

The most recent order from the State of Michigan, effective April 9 – 30, has a unique requirement related to advertising. For stores of more than 50,000 square feet (think the big box stores), the order requires “refrain[ing] from the advertising or promotion of goods that are not groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences.”

This requirement leaves some questions.  Can a state’s governor restrict advertising of non-essential products as part of his or her emergency powers?  Is such a requirement constitutional?  What are businesses with pending advertising promotions supposed to do – e.g. can a store effectively pull an ad in response to an order signed at 2:07pm and effective at 11:59pm that same night? These, and other questions, are likely flooding the marketplace in Michigan and will be until the expiration of the order.