Advertising of Cannabis Products
The sale of recreational cannabis became legal as of October 17, 2018. One year later (on October 17, 2019), the sale of cannabis edibles, extracts and topicals also became legal. The advertising of these products is very heavily restricted, however. What does all of this mean for advertisers? We provide some general information below.
Who regulates cannabis advertising?
At the federal level, Health Canada regulates cannabis under the Cannabis Act. Each province and territorial government also has provincial legislation, generally regulating where the cannabis may be purchased, consumed, and minimum age restrictions.
What products are legal?
Recreational cannabis has been legally available for sale since 2018. The sale of edibles, extracts and topicals became legal on October 17, 2019, but legal products did not widely enter the market for sale until mid-December 2019.
But, this applies to TCH products, right? What about CBD?
The Cannabis Act and applicable regulation apply to any product containing phytocannabinoids. This includes CBD. The legislation does not distinguish between products with various (or no) psychoactive components.
Is a cannabis edible still “food”? Is a topical still a “cosmetic”?
No. A cannabis edible is subject to the Cannabis Act, and not (generally) the Food and Drugs Act. In addition to other differences, dietary claims that might be permissible for food cannot be made about a cannabis edible. Similarly, cannabis extracts and topicals are separately regulated under the Cannabis Act and Cannabis Regulations. For example, it is not permissible to make a cosmetic claim about a cannabis topical.
So, can I advertise cannabis at all?
Cannabis advertising is legal, but with heavy restrictions. The law starts from the position that it is prohibited to “promote” cannabis, cannabis accessories or services related to cannabis. But, the legislation leaves open certain exceptions.
What you can’t do (the legalese):
Unless otherwise authorized by law, “it is prohibited to promote cannabis or a cannabis accessory or any service related to cannabis, including:
(a) by communicating information about its price or distribution;
(b) by doing so in a manner that there are reasonable grounds to believe could be appealing to young persons;
(c) by means of a testimonial or endorsement, however displayed or communicated;
(d) by means of the depiction of a person, character or animal, whether real or fictional; or
(e) 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 [i.e. lifestyle advertising]."
What you can do (more legalese):
“Subject to the regulations, a person that is authorized to produce, sell or distribute cannabis may promote cannabis by means of informational promotion or brand-preference promotion if the promotion is
(a) in a communication that is addressed and sent to an individual who is 18 years of age or older and is identified by name [e.g. direct mail];
(b) in a place where young persons are not permitted by law [e.g. bar bathroom];
(c) communicated by means of a telecommunication, where the person responsible for the content of the promotion has taken reasonable steps to ensure that the promotion cannot be accessed by a young person [e.g. appropriately age-gated website]; or
(d) in another place or manner as set out in regulation."
According to the Cannabis Act:
“Informational promotion means a promotion by which factual information is provided to the consumer about
(a) cannabis or its characteristics;
(b) a cannabis accessory or its characteristics;
(c) a service related to cannabis; or
(d) the availability or price of cannabis, a cannabis accessory or a service related to cannabis.”
“Brand-preference promotion means promotion of cannabis by means of its brand characteristics, promotion of a cannabis accessory by means of its brand characteristics or promotion of a service related to cannabis by means of the brand characteristics of the service.”
And remember, provincial legislation may be even more strict. For example, in Quebec, it is prohibited to sell products (even hats, t-shirts, etc.) bearing images of the cannabis leaf.
Are there any other exceptions available? (some more legalese)
The prohibition against promotion also does not apply:
(a) to a literary, dramatic, musical, cinematographic, scientific, educational or artistic work, production or performance that uses or depicts cannabis, a cannabis accessory or a service related to cannabis, or a brand element of any of those things, whatever the mode or form of its expression, if no consideration is given, directly or indirectly, for that use or depiction in the work, production or performance;
(b) to a report, commentary or opinion in respect of cannabis, a cannabis accessory or a service related to cannabis or a brand element of any of those things, if no consideration is given, directly or indirectly, for the reference to the cannabis, cannabis accessory, service or brand element in that report, commentary or opinion;
(c) to a promotion, by a person that is authorized to produce, sell or distribute cannabis, that is directed at any person that is authorized to produce, sell or distribute cannabis, but not, either directly or indirectly, at consumers; or
(d) to a promotion, by a person that sells or distributes cannabis accessories or that provides a service related to cannabis, that is directed at any person that sells or distributes cannabis accessories, at any person that is authorized to produce, sell or distribute cannabis, but not, either directly or indirectly, at consumers.
Can Ad Standards preclear cannabis advertising?
At this time, Ad Standards does not accept advertising preclearance submissions for recreational cannabis, topicals, or edibles. As Health Canada develops further guidance to support and interpret the laws, we hope that we may be in a position to assist industry with preclearance in the future.
However, there are preclearance options available to those advertisers that have health products authorized for sale by Health Canada. Ad Standards offers review of advertising copy for radio, television, print and digital for those authorized natural health products that include parts of the cannabis plant that are not subject to the Cannabis Act. In addition, we provide advisory opinions on consumer-directed advertisements for authorized prescription drugs that contain cannabis. For more details, please refer to our health product preclearance services.
How does Ad Standards handle complaints about cannabis advertising?
The Canadian Code of Advertising Standards (Code) applies to all advertising, in all media. Of note, Clause 13 of the Code addresses advertising to minors:
13. Advertising to Minors
Products prohibited from sale to minors must not be advertised in such a way as to appeal particularly to persons under legal age, and people featured in advertisements for such products must be, and clearly seen to be, adults under the law.
If you have concerns about an ad for cannabis products that may seem to appeal to minors, you may file a complaint under the Code. We also accept complaints about cannabis advertising that raise other issues under the Code, including Clause 1 (Accuracy & Clarity), Clause 10 (Safety) or Clause 14 (Acceptable Depictions and Portrayals). When we receive complaints or inquiries about compliance with the Cannabis Act, we forward these to Health Canada for assessment and response.
If you have questions about a specific ad or campaign for your brand, first seek advice from legal counsel. Specific questions, comments or complaints about cannabis advertising should be directed to Health Canada.