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Cannabis: Architecting your Dope Message

Slowly, but surely, Canada has been taking measured steps to legalize cannabis for mass consumption.  Whereas the cultivation of cannabis in Canada and sale for medicinal purposes is currently legal (and regulated by Health Canada), its full legalization for recreational consumption is imminent.

What is the Status of the Cannabis Act?

The Canadian House of Commons passed Bill C-45, entitled An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, in November 2017.  The effective date of implementation is still pending clarification.

The Cannabis Act amends criminal penalties for the possession of cannabis for personal consumption, but bolsters criminal charges for supplying cannabis to minors and driving under the influence.

The decision of how to regulate the distribution and sale of cannabis products lies at the provincial level.  Although cannabis products will become normalized, they will still be a regulated consumer product and service, similar to alcohol and tobacco products.

Are There Restrictions on How to Brand Cannabis Products and Services in Canada?

Short answer, yes.  Read on for the long answer.

The Cannabis Act specifically contains restrictions on how a cannabis product or service can be marketed in Canada.  The definition of what constitutes a cannabis product or service is expansive and includes “cannabis, a cannabis accessory or a service related to cannabis”, as well as “a brand of any cannabis”.

The Cannabis Act specifically delineates what constitutes promotion of a cannabis product, accessory or service:

“…for the purpose of selling the thing or service, a representation – other than a representation on a package or label – about the thing or service by any means, whether directly or indirectly, that is likely to influence and shape attitudes, beliefs and behaviours about the thing or service.”

In addition, the definition of what constitutes brand preference promotion of cannabis, a cannabis accessory or cannabis service is also expansive: “…by means of its brand characteristics…”.

It is interesting to note that there is a specific carve out on restrictions for promotion on a business to business level.  However, restrictions are placed on the business to consumer model, such as:

a) appealing to young persons;

b) by means of testimonial or endorsement (read: goodbye influencer marketing campaigns);

c) by depicting a person, character, or animal, whether real or fictional (read: take care in architecting your brand logo);

d) by presenting it or any of its brand elements in a manner that associates it or the brand element 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 (read: take care in the messaging).

The Cannabis Act does proscribe limited scenarios where informational and/or brand preference promotions are allowed. however, the age limits of audience are considered, as are points of sale of authorized distributors.  The messaging contained in the promotion is also governed and extends to health effects of cannabis products.  The ability to sponsor events is restricted, as well as the ability to name a facility.  (Read: if you host events and are approaching by a cannabis related company to sponsor the event, take care).

Similarly, the packaging and labelling of cannabis products is strictly regulated, as is the public display of cannabis products.

What if Your Cannabis Product is Ingested in Conjunction with a Smoking Product?

If the cannabis product or accessory is associated with a tobacco product, the branding, promoting and/or marketing of the product will be governed by the Tobacco Act.

Proceed with Caution

In this burgeoning industry, the Canadian government has ensured that it is not a wild west free for all.  Controversies surrounding cannabis still are prevalent.  As such, the Canadian government has taken great care in creating a system of checks and balances in the production, sale, distribution, branding and marketing of cannabis related products and services.  Whether you are operating a cannabis company, or operating a business that is associating itself with a cannabis company (by way of sponsorship, endorsement, product placement, point of retail sale, brand execution), take measures to ensure that you are compliant with the Cannabis Act, once it becomes in force.