Almost six months after our first article on the Promotion of Cannabis on Social Media was originally published, federal licence holders have now received further guidance from Health Canada regarding the regulatory prohibitions on the promotion of cannabis, cannabis accessories, and cannabis-related services in an online context.
On March 8, 2019, federal licence holders received a compliance promotion letter from Health Canada. Among other things, the letter noted that certain practices which have rapidly become commonplace in the industry in relation to the online promotion of cannabis, cannabis accessories, and cannabis-related services are not in fact compliant with the Cannabis Act and Cannabis Regulations. Among other activities, the letter points out that Health Canada has observed the following non-compliant activities:
- promotions and product packaging and labelling that contain references to product names which could be appealing to young persons, or that depict, through the use of written words or pictures, a person, character, or animal;
- promotions and product packaging and labelling that contain associations with, or that 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; and
- online promotional content on websites and social media sites being made available by some licence holders without any steps being taken to ensure that the promotion cannot be accessed by a young person.
Indeed, in the wake of legalization, a multitude of federal and provincial licence holders have boldly taken to social media to promote their respective businesses, seemingly without regard for the extremely strict regulations surrounding such activity. From artistic, up-close photographs of juicy cannabis buds to “lifestyle shots” of individuals enjoying their favourite cannabis products, the majority of this social media content is freely accessible by young persons with often little more than a token cautionary “must be 19+ to follow” disclaimer in the bio or profile page.
Whether this behaviour is due to lack of enforcement efforts from Health Canada to date, which make the consequences of non-compliance seem remote, or a simple lack of awareness of the strict regulatory regime, these entities seem willing to take the risk in an effort to build their brands.
It is not only licence holders producing this content. Ancillary cannabis-related businesses, such as cannabis-infused dining outfits, cannabis tour companies, and cannabis lifestyle bloggers, have all cropped up with similar if not more provocative content. It is likely that these entities are unaware that the strict prohibitions on the promotion of cannabis, cannabis-accessories and cannabis-related services apply to them too, with only limited exceptions.
The March 8, 2019 letter is one of the first proactive enforcement measures we have seen in this space so far, and the following passage from the letter sums up neatly why enforcement is a priority for Health Canada:
The Cannabis Act includes these provisions in support of its objectives, including but not limited to protecting young persons and others from inducements to use cannabis. Promotion can have a significant impact on the appeal, social acceptance and “normalization” of a particular product, and in turn its level of use, particularly around youth.
That said, Health Canada has yet to provide concrete examples of what might constitute compliant activities in an online context. For example, the March 8, 2019 letter points to “simple self-attestation of age” mechanisms (e.g. age gates) as being “easily circumvented by youth”. However, Health Canada does not provide an example of what type of age-verification mechanism on a website would be compliant. Additionally, with many government-run online retail stores (including BC Cannabis Stores, the Ontario Cannabis Store, and the SQDC) using the very same “simple” age-gated websites, Health Canada’s letter has left licence holders guessing at what constitutes a compliant approach.
Furthermore, the March 8, 2019 letter does not make any specific mention of practices on Twitter, Instagram, or other social media platforms other than to say that Health Canada has observed that these platforms have been used in a non-compliant manner. It is unclear from the March 8, 2019 letter whether Health Canada foresees a role for social media at all within the regulatory framework.
These criticisms aside, the March 8, 2019 letter is a clear signal to the industry that it is time to pivot away from the risky marketing and advertising strategies that have prevailed so far. The letter urges all licence holders to immediately address their online promotional content and, where necessary, implement additional steps to ensure that youth cannot access this promotional content. Health Canada reminds licence holders of the serious penalties that can ensue from non-compliance, including fines of up to $1,000,000.
Licence holders and all other cannabis-related businesses should take this opportunity to review their online content, especially their social media content, and take steps to bring it into compliance. Health Canada’s letter indicates that subscribing to the “everyone else is doing it” approach will soon no longer be a viable option. Legal professionals specializing in cannabis law regulatory compliance can assist you if you are ready to pivot your marketing and advertising strategy.
By Emilie Feil-Fraser, Gowling WLG