Cannabis Marketing Regulation Landscape

Delivered April 12th, 2018. Contributors: Kimberly G., Pamela E., Andre T., Mikaela E. and

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Cannabis Marketing Regulation Landscape - Ontario

Ontario's cannabis marketing is governed by a set of nationwide rules covering content and target audience for advertisement. Currently, these rules are self-imposed, and were developed by a partnership of the Canadian Medical Cannabis Council and Cannabis Canada Association, with input from Advertising Standards Canada. They may become law in July 2018, if adopted by the Canadian government. Ontario has no province-specific regulation in place for cannabis advertising, but does have some regulations related to cannabis store branding, as described below. 

LICENSING AND BRANDING
Across Canada, under the proposed regulations, cannabis producers may label their product as licensed or authorized by Health Canada. In Ontario, licensed cannabis stores will open in 14 cities in July 2018. These are to be identified with a logo developed by the Liquor Control Board of Ontario (LCBO), featuring a circle with the abbreviation OCS in thin black font, standing for Ontario Cannabis Store. This logo and designation are not a part of the advertising guidelines for Canada as a whole, but specific to Ontario. 

OTHER CONSIDERATIONS IN ONTARIO
Cannabis producers and retailers in Ontario may wish to be aware of the province's overall attitude towards legal cannabis sales. This information does not have the force of regulation, but indicates something about the expectation of Ontario government towards this developing market. Ontario appears to be aiming its policy on legal cannabis sales towards safety and respectability of the product, and establishing legal cannabis as superior to black-market products. The reduction of black-market cannabis sales was stated as a goal of the province's speedy adoption of legal sales. In addition, the somewhat nondescript logo and name for legal retailers in the province was intended to "[convey] a safe, simple, open and approachable environment for consumers in a clear and easily understood manner", according to the LCBO. 

COUNTRY-WIDE GUIDELINES
In addition to properly branding cannabis retailers as described above, Ontario's cannabis businesses must adhere to the same guidelines that apply nationwide. These include avoiding youth-targeted advertising, inclusion of responsible use statements, promotion of brand or product rather than cannabis use, avoiding health claims, and avoiding sexual or violent imagery.  Please note that in Ontario, the legal age for consumption was set at 19 rather than 18, which may affect compliance with the national guidelines regarding advertising to younger people. 

CONCLUSION
Currently, all advertising guidelines for cannabis products are voluntary, but may become law within the next few months. Both producers and retailers should stay away from advertising that targets youth, makes health claims, includes sexual or violent content or imagery, or links cannabis consumption to driving or other activities that may be dangerous when impaired. Both producers and retailers should also be mindful that their advertising promotes their brand, but not cannabis consumption in general. Finally, in Ontario, retailers must use the LCBO's logo and branding material to identify themselves as licensed sellers. 

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Cannabis Marketing Regulation Landscape - Nova Scotia

In Nova Scotia, the sale of recreational cannabis and cannabis accessories will be regulated by both the over-arching federal Cannabis Act and by Nova Scotia's own Cannabis Control Act. Sales will be permitted online with home delivery and at nine Nova Scotia Liquor Corp outlets located throughout Nova Scotia. The Nova Scotia Cannabis Control Act does not provide guidelines or restrictions concerning what either producers or retailers can or can't say in their marketing. Instead, the Act states that all producers and retailers must adhere to the regulations presented in the federal Cannabis Act. Recreational cannabis must be packaged in a way that is not intended to be marketed to young people and in ways that are in accordance with both the Cannabis Act and the Cannabis Control Act.

general INFORMATIONThe sale of recreational cannabis and cannabis accessories in Novia Scotia will be permitted online with home delivery and in nine Nova Scotia Liquor Corp outlets. Two outlets will be located in Halifax and one outlet will be located in each of the following communities: Amherst, Dartmouth, Lower Sackville, New Glasgow, Sydney River, Truro, and Yarmouth. No privately-owned businesses or establishments, including existing dispensaries, will be allowed to legally sell cannabis.  The legal age for buying recreational cannabis will be 19 which is the legal drinking age as well. Canadians over age 19 will be allowed to have up to 30 grams in their possession and will be allowed to grow up to four plants per household as well. The smoking of recreational cannabis will be banned inside all public places as well as at many outdoor public spaces including schools, daycares, parks, playgrounds, beaches, sports venues, and bar and restaurant patios. 

Marketing regulationsNova Scotia's Cannabis Control Act does not include specific marketing regulations concerning either the production or selling of recreational cannabis. Instead, the Act states that producers and retailers must adhere to the regulations set forth in the federal Cannabis Act, Bill C-45. I have included information about the sections of this Act that apply to marketing below.
PROMOTIONAL REGULATIONS1.  Cannabis, cannabis accessories, and any cannabis-related services may not be promoted by communicating pricing or distribution information, by using endorsements or testimonials, by depicting a character, person, or animal either real or fictional, by presenting cannabis as leading to a way of life that includes "glamour, recreation, excitement, vitality, risk or daring" or by marketing it in any way that appeals or seems to be intended to appeal to young people. 

 EXCEPTIONS 

Exceptions to regulations concerning the promotion and marketing of cannabis, cannabis accessories, and cannabis services apply if the promotion is informational.  In those instances, the informational communication must be"addressed and sent" to a named person who is at least 18 years old, or in a telecommunication where reasonable steps have been taken to ensure that young people are not able to access the telecommunication, or is communicated in a place where young people are not allowed to be.

Exceptions also apply at the point-of-sale of cannabis, cannabis accessories, and cannabis services if the promotion contains only the following information: the availability, the price, or the availability and price.

2. A brand element of cannabis, cannabis accessories, or cannabis services may be promoted so long as the element is not something that is associated with or would reasonably be believed to appeal to young people. The element must also not be "associated with a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring".

 FALSE PROMOTION 

False promotion which is defined in the Cannabis Act as any promotion that is " false, misleading or deceptive or that is likely to create an erroneous impression about its characteristics, value, quantity, composition, strength, concentration, potency, purity, quality, merit, safety, health effects or health risks" is strictly prohibited. 

 ADDITIONAL PROHIBITED ITEMS 

Additional expressions, terms, symbols, logos, and illustrations that are prohibited under the federal Cannabis Act are located under paragraph 139.

Any promotion that uses foreign media is prohibited.

The use of a brand element of cannabis, cannabis accessories, or cannabis services along with the name of anyone who produces or sells cannabis, cannabis accessories, or cannabis services for sponsorship or promotional purposes or the displaying of these on a facility if the facility is used as a sports or cultural venue is also prohibited.  

ConclusionRecreational cannabis in Nova Scotia is regulated by both the federal Cannabis Act, Bill C-45, and Nova Scotia's Cannabis Control Act.  The Cannabis Control Act does not contain specific marketing regulations, but instead states that cannabis producers and retailers must follow the regulations set forth in the federal Cannabis Act. The primary goal of marketing regulations is to prevent marketing that targets young people, can be reasonably be believed to appeal to young people or presenting cannabis as leading to a way of life that includes "glamour, recreation, excitement, vitality, risk or daring."

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Cannabis Marketing Regulation Landscape - Alberta

As it currently stands, Alberta has its own regulations for Cannabis distribution and this outlines how marijuana should be marketed as a retailer. Alberta, specifically, has no current legislation for marketing as a producer and thus their regulations fall under that of the Canadian federal government.
The Current State of the Cannabis Industry in AlbertaThe Canadian federal government says it wants "cannabis legalized by July 1st, 2018". The bill that legalizes cannabis is still in debate and this could mean that the implementation date could be pushed back even further.
Alberta has passed its own legislation and regulations for "marijuana distribution" in November of 2017. 
Marketing laws for Cannabis ProducersThe Canadian federal government currently has advertising prohibitions on Cannabis. These regulations apply to Cannabis producers for all provinces in Canada which includes Alberta. Until Alberta has their own legislation for Cannabis producers, everyone must follow the Federal regulations.

The Federal regulations as stated in the NCR (Narcotic Control Regulations) and FDA (Food and Drugs Act) have "general prohibitions against the advertising of cannabis that licensed producers" must comply with, these include but are not limited to:

1) "No person shall advertise any food, drug, cosmetic or device to the general public as a treatment, preventative or cure for any of the diseases, disorders or abnormal physical states referred to in Schedule A".

2) "No person shall label, package, treat, process, sell or advertise any drug in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety".

3) "No person shall (a) publish or cause to be published or furnish any advertisement respecting a narcotic unless the symbol "N" is clearly and conspicuously displayed in the upper left-hand quarter thereof or, if the advertisement consists of more than one page, on the first page thereof; (b) publish or cause to be published or furnish any advertisement to the general public respecting a narcotic; or (c) advertise in a pharmacy a preparation referred to in section 36."
Marketing laws for Cannabis Retailers
The current laws are not all-encompassing however they include but are not limited to:

1) "No misleading information"

2) "Marketing must contain all mandatory packaging labels."

3) "No marketing to those under the legal age of 18."

4) "Only promote brand preference; cannot promote the use of product or influence product use."

5) "Websites must have age verification to confirm visitors are above the legal age"

6) "Storefronts cannot have any street-facing promotional posters or signs"
ConclusionWith respect to marketing regulations as a distributor or retailer, Alberta has its own regulations that were passed in November 2017. Marketing regulations as a producer, however, fall under the Canadian federal government as Alberta has no regulations as of yet.

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Cannabis Marketing Regulation Landscape - British Columbia

In British Columbia, the federal government regulates the advertisement of cannabis under the proposed Cannabis Act. Through this legislation, a licensed retailer is permitted to promote cannabis in two ways: informational promotion and brand-preference promotion. Bill C-45 outlines the restrictions and guidelines for promotional material related to cannabis.
BACKGROUNDPreexisting information was available through government sites and media sites. Based on this research, we found the producers of cannabis in BC will only sell to the B.C. Liquor Distribution Board and the BC Liquor Distribution Branch (LDB) will operate the public retail stores, and Liquor Control and Licensing Branch (LCLB) will be responsible for licensing private stores and monitoring the retail sector. Like many other provinces, B.C. will have a government-run wholesale distribution model. 
Marketing RegulationsBritish Columbia adheres to the federal governments regulation on the advertisement of cannabis under the proposed Cannabis Act.  Bill C-45 outlines how a retailer licensed to produce, sell, and/or distribute cannabis may market their product. I have outlined the key finding of this enactment of the Cannabis Act below:

Promotion of cannabis, cannabis accessories, or services pertaining to cannabis is prohibited unless it falls into one of three exception categories. Prohibition of promotion includes information about pricing, in a manner to specifically appeal to young persons, testimonials, endorsements, images of a person, animal or caricature(real or fictional), or "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."

The first exception is marketing that is considered "informational promotion" of cannabis. Informational promotional material may be mailed to individuals who are at least 18 years of age and are identified by name. Informational promotions are also allowed in areas where young persons are legally not permitted. Telecommunication is only permitted if the person accepting responsibility for the promotional content has taken the appropriate measures to ensure a young person can not access it. Lastly, informational promotion is permitted in a prescribed place or manner.

The second exception is marketing that is considered a point of sale of cannabis. The allows a retailer to promote at the point of sale as long as the promotion only pertains to its availability or price.

The final exception is marketing that is considered a brand element of cannabis, cannabis accessories, or services associated with cannabis on something that is not cannabis or cannabis accessory. Regulations on this exception include things related with young persons, things targeted to be marketed to young persons, or "a thing that is associated with a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring."

This bill strictly prohibits the intentional false promotions of cannabis that are deceptive or misleading or "that are likely to create an erroneous impression about its characteristics, value, quantity, composition, strength, concentration, potency, purity, quality, merit, safety, health effects or health risks."

A separate list of prohibited terms, expressions, logos, symbols and illustrations can be found under paragraph 139.

 Retailers are prohibited from the use of foreign media. Foreign media is defined as "a publication that is published outside of Canada, a broadcast that originates outside Canada or any other communication that originates outside Canada."

There are specific regulations that refer to sponsorship.  These regulations pertain to the sponsorship of an individual, event, or facility.  The regulations include brand elements of cannabis or accessories and listing the name of a producer, retailer or distributor of cannabis.

It is also prohibited to display brand elements of cannabis or cannabis accessories on the retail facility or in the name of the retail facility. In naming the retail facility it is also prohibited to use the name of a person who produces, distributes or sells cannabis or cannabis accessories.

Lastly, the bill states that "It is prohibited to publish, broadcast or otherwise disseminate, on behalf of another person, with or without consideration, any promotion that is prohibited by any of sections."

The BC Cannabis Private Retailer guide outlines two regulations that seem pertinent to your inquiry. Firstly, only public retailers are permitted to sell material online. Second, consumption of cannabis in the retail space is strictly prohibited. Therefore, the sampling of material is not a permitted marketing strategy.
ConclusionBritish Columbia is regulated by Bill C-45, which outlines the guidelines for retails in the cannabis market. If a retailer has a license through the federal government to produce, distribute, or sell cannabis then they are permitted to promote their material for informational, a point of sale, or brand-preference promotions.