In this edition of our series on the Task Force’s final report "A Framework for the Legalization and Regulation of Cannabis in Canada" (the "Report") we explore the Task Force’s recommendations in relation to advertising, packaging and labelling of cannabis.
The Task Force recommends imposing strict tobacco-like limitations on the marketing and promotion of cannabis. If implemented, these restrictions could have a profound impact on the ability of industry stakeholders to brand, market and brand differentiate.
In the Report, the Task Force recommends that the federal government:
Under the Tobacco Act, SC 1997, c 13, promotion is defined as "a representation about a product or service by any means, whether directly or indirectly, including any communication of information about a product or service and its price and distribution that is likely to influence and shape attitudes, beliefs and behaviours about the product or service." This definition of promotion does not extend to the publishing of legitimate scientific research funded by tobacco manufacturers. Promotion is to be interpreted to mean "commercial promotion indirectly or directly targeted at consumers."1
A person may advertise a tobacco product only in limited circumstances. A person may only promote by means of information advertising (factual information to the consumer about a product and its characteristics or the availability or price of a product or brand of product) or brand-preference advertising (promoting a product by means of brand characteristics) in the following two instances:
Notably, tobacco companies are not permitted to engage in lifestyle advertising or advertising that could be construed on reasonable grounds to be appealing to young persons. Lifestyle advertising means advertising that associates a product with, or evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring. In furtherance of the limits on lifestyle advertising, the Tobacco Act does not allow a tobacco product-related brand element or even the name of a tobacco manufacturer to be used in promoting sponsorship events.
The Report recommends that the federal government require plain packaging for cannabis products. Health Canada is currently considering plain packaging as a means of regulating the appearance, shape and size of tobacco packages in Canada but such a requirement has not yet been implemented.
The proposed plain packaging requirements for tobacco products include:
The Report recommends that the restrictions on cannabis promotion and packaging be similar to the restrictions set out above. However, the above restrictions are not easily translatable to the cannabis industry because of the dual purpose of cannabis as both a recreational drug and a medicinal cannabis product. The Report itself recommends a separate medical access framework to support patients and encourages further research into the health benefits of cannabis. It is unclear how these restrictions will apply in light of the dual system. For example, without branding it is unclear how medical cannabis products will be differentiated from recreational cannabis products and whether the restrictions on sponsorship will extend to restricting sponsorship of research-based events or fundraisers related to the medical use of cannabis.
In addition, if the recommendations of the Task Force are implemented, we expect to see branding and marketing restrictions being limited primarily to marketing collateral (e.g., branded displays) located within physical retail outlets (i.e., where minors will, presumably, not be permitted by law) and publications mailed to a named adult, the latter being an exemption to the tobacco marketing restrictions which is routinely relied on by tobacco companies.
The above update provides a brief overview of the Task Force’s recommendation relating to advertising, packaging and labelling of cannabis. It is important to remember that cannabis law is complex and rapidly evolving. At Bennett Jones LLP, we have a team of industry-leading professional advisors that can provide legal and strategic guidance to all industry participants as the Canadian cannabis industry continues to advance.
1 Canada (Attorney General) v JTI-MacDonald, 2007 SCC 30 at para 57.