Anybody who expected to see pot being marketed as part of an affluent, fun lifestyle, starting with its legalization today across Canada, is in for a surprise. In fact, federal law imposes buzz-killing restrictions on promotions, rules which seem at odds with the giddy atmosphere that’s surrounded the Cannabis Act coming into force.
The clearest early test of Health Canada’s approach to enforcing the act’s prohibitions might be coming from New Brunswick, where the government-owned Cannabis NB online distribution website features upbeat photos of young people having fun and text that suggests weed goes well with concerts, poker games and a “girls night out.” Health Canada told Maclean’s it is “looking into” Cannabis NB’s website.
For insights into the federal law that hems in pot promotions, Maclean’s turned to Sara Zborovski, a lawyer in Toronto with the firm Norton Rose Fulbright, who advises clients on the Cannabis Act as part of her regulatory and commercial law practice.
Q: Did the Cannabis NB website surprise you?
A: Absolutely. The Cannabis Act sections on promotion are basically lifted from the Tobacco Act, and it’s an important thing to remember, because advertising of tobacco was regulated very heavily shortly after we all realized there’s a huge health and safety concern associated with tobacco. The Canadian government then lifted those into the Cannabis Act without much regard, in my view, for the difference between recreational, adult-use cannabis and tobacco.
Q: What are the restrictions on cannabis promotion?
A: There are three main ones. The first is you can’t promote a cannabis product in a way that is appealing to youth. We have a general understanding of what that means because of litigation we’ve seen under the tobacco act. But then there’s the restriction on lifestyle promotions and the restriction on depictions of persons.
Clearly, any website that shows a person in connection with a cannabis product would be offside that provision in the Cannabis Act. I suspect we’re going to see some pushing of the envelop or raising of questions surrounding that restriction. I think there’s a big difference between the showing of a hand, for example, or a face, vs somebody consuming cannabis. I think there’s a big continuum, and we’re going to see some action around that continuum as industry tries to push that envelope.
Then there’s the third one—the prohibition on lifestyle. The act says you can’t evoke “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.” Well, what we’re dealing with here is recreational cannabis, but we’re not allowed to talk about it in any way that makes us think about recreation. I think there’s almost a disconnect there. I think we’ll see a lot of people playing in the grey and trying to find a safe way to play in the grey.
Q: If depictions of people are flatly not allowed, do you think cannabis promotion can include a picture of a seascape or a mountain range with no people in the frame?
A: The way I’ve been counselling clients in this space is there’s a risk continuum. If you’re going to be uber-compliant with the legislation, you couldn’t show a mountain, or a yoga mat, or a coffee cup. All you can show is the name of your company and its logo. But then no one’s actually going to be that compliant. Quite frankly if you’re too compliant, industry gets out ahead of you. So, what we’re seeing is industry moving as a pack—maybe a mountain without any additional text.
Q: So what promotional approach would you always advise against?
A: Certainly, anything that would promote cannabis in a way that enticing somebody to become something different or is aspirational. Consume our brand of cannabis and your yoga practice will improve, or you’ll feel much more excited about life, or you’ll become a more chill person. Those kinds of promotions will not fly. But putting your brand on a yoga mat, or associating your brand with a beach, or a lounge chair—that may be an area where industry is a little more comfortable playing in the grey.
Q: Should Health Canada have cleared up more about exactly what’s allowed and what’s not allowed before Oct. 17, when cannabis became legal across Canada? It seems like a lot of questions remain.
A: There’s a fair bit of frustration around the lack of guidance from Health Canada about promotion in particular, among other things. Their answer has been, ‘Well, it’s in the regs or the act.’ But there’s a lot of room for interpretation and we have no history with enforcement. So, the counsel I’ve been giving to clients is keep the spirit of the act in mind.
[This interview was edited for clarity and length.]