The extent to which the new law will restrict the advertising and branding of cannabis was, and still is, one of the key unknowns. From industry’s perspective, cannabis should be regulated more like alcohol than tobacco, and the ability to brand their products (rather than sell only in plain packaging) is essential to properly compete with the black market and makes it more difficult to have counterfeit product. In contrast, many public health, law enforcement and youth experts believe strict controls are needed to minimize the risks of cannabis promotion to youth, given the challenges with partial restrictions (i.e., only prohibiting advertising that targets youth).

The Task Force on Marijuana Legalization and Regulation recommended that advertising and promotion of cannabis be strictly regulated and products only sold in plain packaging (similar to the global trend with tobacco). However, the current version of the Cannabis Act’s (Act) restrictions on promotion and packaging presently fall in-between those advocated by industry and those advocated by public health and other experts.
The Act prohibits any promotion of cannabis, a cannabis accessory or a service related to cannabis, as well as any packaging, that (1) uses testimonials or endorsements; (2) depicts a person, character or animal (real or fictional); (3) constitutes lifestyle advertising (e.g., associated with a way of life involving glamour, recreation, excitement, vitality, risk or daring); or (4) is directed to young persons. Whether plain packaging will be required once regulations are introduced remains to be seen. Sponsorships are also prohibited under the Act, and promotion on the basis of price or distribution is restricted. Further, to pre-empt the use of foreign media as a loophole, the Act also explicitly prohibits the use of foreign media to promote cannabis, an accessory or service if the promotion would otherwise have been prohibited under the Act. Informational promotion or brand-preference promotion is permitted in limited circumstances (e.g., in a place where young persons are not permitted by law).
In addition to cannabis-specific restrictions, industry must remember to comply with all of the general advertising, anti-spam and privacy laws that apply to all businesses. This is especially important since a flood of class actions are expected once the private right of action comes into force on July 1, 2017, for contraventions of Canada’s Anti-Spam Legislation as well as certain types of misleading advertising under the Competition Act.
There are unique privacy considerations with cannabis. For example, as privacy laws for personal information versus personal health information differ, businesses will need to keep this in mind once cannabis is legal for both medical and recreational purposes. Also, for both privacy and safety/diversion reasons, there may be issues with having packaging, or even an envelope, that identifies the recipient as someone who may have cannabis. A privacy class action against the Government of Canada is pending because several years ago Health Canada sent mail to certain Canadians that inadvertently referenced “Marihuana Medical Access Program” in combination with the addressee’s name on the envelope.
Even once recreational cannabis is lawful, edibles are not likely to be permitted until a later date. Once permitted, those in the edibles business will need to ensure compliance not only with cannabis-specific laws (e.g., cannot be appealing to young persons, cannot contain any substance designated as prohibited such as caffeine, potentially), but any applicable general food laws too. The task force report specifically recommended that the labelling requirements that apply to food and beverages generally also apply to edibles. At a federal level, the food industry is undergoing some of the most significant developments and consultations in decades (including the Safe Food for Canadians Act), and any business interested in edibles should ensure it is familiar with all applicable regulatory regimes (from federal to municipal). For example, notwithstanding that dispensaries are currently illegal throughout Canada (due to federal law), some municipalities have chosen to regulate these businesses and it is interesting to note the difference in treatment of edibles, even within the same province (e.g., the City of Vancouver has banned dispensaries from selling edibles, while the City of Victoria has not, despite both being in the province of British Columbia).
Marketing & Health Regulatory
Cannabis in Canada: A Changing Legal Landscape
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