In 2016, Canada’s federal government announced its plan to introduce legislation to legalize recreational cannabis/marijuana use.
On April 13, 2017, Bill C-45 (the federal Cannabis Act), was introduced into Canada’s House of Commons and has now been passed by both the House of Commons and Senate and received royal assent.
The federal government also announced that October 17, 2018 will be the coming into force date of Canada’s new cannabis/marijuana legislation.
The Cannabis Act will, among other things, regulate the promotion and packaging of cannabis and cannabis accessories.
Marketing Restrictions
In general, the Cannabis Act, once in force, will prohibit the marketing of cannabis and cannabis accessories in a false, misleading or deceptive manner. This prohibition is similar to general misleading advertising prohibitions in the federal Competition Act and provincial consumer protection statutes in Canada.
Similar to the existing general misleading advertising provisions of the federal Competition Act, and some provincial consumer protection laws, the impression of marketing will also be relevant. In this regard, the Cannabis Act will prohibit both false or misleading cannabis promotion and marketing likely to create an erroneous impression about its characteristics, value, quantity, composition, strength, concentration, potency, purity, quality, merit, safety, health effects or health risks.
The Cannabis Act will also prohibit marketing cannabis, cannabis accessories or cannabis services in any of the following ways: (i) communicating price or distribution information; (ii) appealing to young persons; (iii) using testimonials or endorsements; or (iv) depicting a person, character or animal.
The Cannabis Act will, however, allow brand elements to be displayed on things other than cannabis or cannabis accessories (i.e., “swag”), unless they are associated with young persons, could be believed on reasonable grounds to appeal to young persons or associated with a way of life, such as glamour, recreation, excitement, vitality, risk or daring.
The Cannabis Act also contains specific provisions relating to sponsorship and naming sports and other facilities.
Packaging and Labelling
In addition to the marketing restrictions for cannabis and cannabis products discussed above, the Cannabis Act also sets out certain prohibitions on packaging and labelling.
The Cannabis Act prohibits cannabis and cannabis accessories, among other things, from being packaged or labelled in any of the following ways: (i) if the package or label could appeal to young persons; (ii) using testimonials or endorsements; (iii) depicting a person, character or animal, whether real or fictional; (iv) or using lifestyle advertising. Specific labelling requirements will be set out in regulations once the new legislation is in force.
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I am a Toronto competition/antitrust lawyer and advertising/marketing lawyer who helps clients in Toronto, Canada and the US practically navigate Canada’s advertising and marketing laws and offers Canadian advertising/marketing law services in relation to print, online, new media, social media and e-mail marketing.
My Canadian advertising/marketing law services include advice in relation to: anti-spam legislation (CASL); Competition Bureau complaints; the general misleading advertising provisions of the federal Competition Act; Internet, new media and social media advertising and marketing; promotional contests (sweepstakes); and sales and promotions. I also provide advice relating to specific types of advertising issues, including performance claims, testimonials, disclaimers, drip pricing, astroturfing and native advertising.
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