Canada’s new Prime Minister continues to make waves on the global stage. During the lead up to the October 2015 election he made a marked departure from the Tory government by announcing the Liberal Party’s commitment to “legalize, regulate and restrict access to marijuana” noting that Canada’s current “system of marijuana prohibition does not work”. The Liberal Party platform promised to “design a new system of strict marijuana sales and distribution, with appropriate federal and provincial excise taxes applied.”
After sweeping the federal election to victory, the Liberal government is making good on its promise. In April, 2016, the federal Minister of Health announced at a special session of the General Assembly of the United Nations that Canada planned to introduce a new federal marijuana law in the Spring of 2017. The date of the announcement could not have been more perfect: 4-20, which celebrates the consumption of marijuana.
The present laws are complex. Dried marijuana is not an approved drug or medicine in Canada but reasonable access for medical purposes is permitted with the authorization of a healthcare practitioner. The production, distribution, sale and use of marijuana are regulated by the Controlled Drugs and Substances Act and Narcotic Control Regulations (“NCR”). In June 2013, Marihuana for Medical Purposes Regulations (“MMPR”) came into force and introduced among other things more choices of marihuana strains and licensed commercial suppliers.
Despite not being broadly “legal” yet, over the last couple of years, there has been a surge in the medical marijuana industry. Companies specializing in the production and sale of medical marijuana have sprouted across Canada – some are even publicly listed on the TSE-Venture Exchange. Trademark filings in connection with marijuana have also increased exponentially from 8 in 2011-2012, to 43 in 2012-2013, 162 in 2013-2014 and 187 in 2014-2015. And dispensaries have proliferated like the plants that they dry and sell.
Presently, “advertising” is restricted. The MMPR, the Food and Drugs Act (FDA) and the NCR define advertisement to include any representation by any means whatever for the purpose of promoting directly or indirectly the sale or disposal of a drug (in the case of the FDA) or a narcotic (with respect to the NCR). Presently licensed producers must comply with the general prohibitions on advertising found in both the FDA and the NCR. The restrictions do not apply to the dissemination of “non-promotional information”. To determine if a message is “advertising”, which is restricted, or non-promotional information which is not, one must consider the purpose of any message by a licensed producer, its content, its context, and its intended audience. While the Tory government was still in office it announced in an August 1, 2015 press release that it would actively monitor advertising activities in print, radio, television and on websites for various businesses including dispensaries. It is not clear whether the new Liberal government will take proactive advertising enforcement measures in the lead up to the new law.