Idea Thursday: Advertising Cannabis

Hello NCRA/ANREC members,

I’m sure you’ve heard the news, Bill C-45 just passed. Canada has just legalized the recreational use of cannabis (marijuana, Mary J, pot, dope, herb, ganja, etc.). The Bill is scheduled to come into force on October 17th and is likely to lead to members asking us questions about whether not cannabis businesses will be lighting up your advertising time slots, and whether that is possible. We suggest that you should not have ‘high’ expectations, as the Bill contains a lot of advertising restrictions, which was a ‘joint’ decision by both the House and Senate. If you have any further questions about the doobie, check out the government’s aptly named website www.canada.ca/cannabis

After a review of the Bill by our Regulatory Affairs Director we’ve concluded that although the Bill contains a limited exemption for licensed broadcasters from the prohibition on promoting cannabis (s. 23(2)(b)), the section specifies that promotions inserted by those broadcasters are not exempt and are subject to the restrictions set out in the Bill.  It’s therefore unclear to us what, if anything, is actually exempt.

In our view, the significant restrictions on promotion would make it extraordinarily difficult to do any promotion at all and be in compliance with the law. We, therefore, do not recommend that stations broadcast any advertising or sponsorship messages for cannabis or related businesses. The restrictions on cannabis advertising appear to be similar to those already in place for alcohol and tobacco advertising, so please keep that in mind when determining what is appropriate for your station’s broadcast content.

The promotion prohibitions outlined in the Bill do not apply to literary, musical, cinematographic, scientific, educational, or artistic productions or programming that uses, depicts, or pertains to cannabis, cannabis accessories, or related services. This means that the public affairs programming created at your stations to report on cannabis and provide commentary or opinion is not prohibited, as long as the programming itself does not constitute advertising (i.e. it does not constitute paid air time and is within the complete editorial control of the station). As a precaution, this programming should still adhere to prohibition #1 set out below (e.g. it should not be presented in a way that is evocative or would make it appeal to young people).

The key prohibitions on promotion that you should be aware of from sections 16-24 of the Bill are below (summarized, please see the Bill for actual wording) :

  1. Promotions for cannabis, accessories or services cannot include: communication about price or distribution, content that makes cannabis appeal to young people, depictions of a person, character, or animal (real or fictional), associating a brand with or evoking a positive or negative emotion, image, or way of life that includes glamour, recreation, excitement, vitality, risk, or daring.

  2. Promotions also cannot include: false, misleading, or deceptive promotion, or be likely to create an incorrect impression about the product’s characteristics, value, quantity, composition, strength, concentration, potency, purity, quality, merit, safety, health effects, risks, design, construction, performance, intended use, etc

  3. There will be a list of  prohibited terms, expressions, logos, symbols, and illustrations that cannot be used to promote cannabis, accessories or services (to be set out in Regulations, which we will distribute when they become available)

  4. Regarding sponsorship of a person, entity, event, activity or facility, it's prohibited to display, refer to, or use any of the following: brand elements of cannabis, accessories, services, or the name of a person or business that produces, sells, or distributes cannabis, accessories, or services.

 

The restrictions related to the promotion of Cannabis are much more detailed than the points above, but we believe these are the most directly relevant to broadcasting. If you need more detail, please take time to review the actual Bill. There may be further guidance issued by the government in the run-up to October 17th; if we receive anything we will pass it along to members.

If you have any questions please let us know,

Hi NCRA/ANREC Members

I wanted to share the response to a question asked of us in regards to this topic.
If you have an existing contract with a cannabis grower those promotions are likely fine as-is until October 17 when the Cannabis Act comes into effect.
In the case of sponsorship of programming or the station following the rules coming into effect in October, the sponsorship would likely be acceptable as long as the message contains only the name of the business and no details regarding the products (also other provisions listed above). Please reach out to us if you have a specific question related to this.
We have reached out to Ad Standards, who provide clearance services for alcohol advertising, to see if they intend to provide clearance services for advertising regarding cannabis. We are awaiting a response and will notify members as soon as we've been made aware.
If you have any other questions please don't hesitate to ask.

Hello NCRA/ANREC Members

We have a little further information to share with our members following a response from Health Canada regarding our earlier inquiries about promoting cannabis.

We want to clarify that although the Cannabis Act is not yet in force (it comes into effect on October 17, 2018), other prohibitions on advertising cannabis are currently in place under the Access to Cannabis for Medical Purposes Regulations (ACMPR), the Food and Drugs Act (FDA) and the Narcotic Control Regulations (NCR).

The FDA and the NCR define “advertisement” to include any representation by any means whatever for the purpose of promoting directly or indirectly the sale of a drug (in the case of the FDA) or a narcotic (with respect to the NCR). Both the FDA and the NCR contain general prohibitions against the advertising of cannabis, including:

· NCR s 70 (b). No person shall publish or cause to be published or furnish any advertisement to the general public respecting a narcotic; or

· FDA s 3. (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.

· FDA s 9. (1) 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.

We were informed by Health Canada that licensed producers can provide basic information on cannabis products to potential customers who are authorized by their health care practitioner to consume cannabis for medical purposes such as the name, brand, price per gram, CBD and THC content and contact information. However, any advertising for the non-medical market (emphasis added) is currently prohibited under section 70 of the NCR noted above.

When the Cannabis Act comes into force on October 17th, the promotion of cannabis for the non-medical market will become legal with significant restrictions (emphasis added) which we’ve outlined in our previous email. To repeat, the Cannabis Act will permit limited promotion by allowing persons authorized to produce, sell or distribute cannabis, and persons promoting cannabis accessories or a service related to cannabis, to provide informational promotion (i.e. factual information) and/or brand-preference promotion (information about brand characteristics) to help consumers make informed decisions about cannabis. This will be allowed only when the promotion is communicated in a way in which it cannot be accessed by a person under the age of 18 years old, which means that radio advertising is not permitted.

Health Canada also made a point of emphasizing to us the consequence of being non-compliant. “ For the purposes of any violations related to promotions, the measures available to Health Canada for compliance and enforcement purposes include the issuance of warning letters, licence restrictions, suspensions and revocations, and administrative monetary penalties. Depending on the seriousness of the violation, Health Canada could issue an administrative monetary penalty of up to $1,000,000.”

It is not clear to the NCRA/ANREC Regulatory Committee whether a simple show sponsorship by a cannabis service (e.g. “This program is sponsored by X cannabis dispensary”) would fall foul of those rules. We will seek further clarification and provide an update when we can. However, we note that it would be at your own peril if your station is currently broadcasting cannabis-related sponsorships or plans to do so in future.

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