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Ambiguity around marketing in Cannabis Act causing confusion

|Written By donalee Moulton
Ambiguity around marketing in Cannabis Act causing confusion
Mark Gruchy says the confusion stems less from what the legislation says and more from what it does not say. PHOTO: David Hebbard, Dogberry Hill Productions.

The article you’re about to read could be in violation of the Cannabis Act. That legislation contains prohibitions on the promotion of marijuana, prohibitions one lawyer believes could make everything from educational commentary to coffee table books to select movie showings potentially illegal.

Included in the act are requirements around the promotion of cannabis and cannabis accessories. The language that governs this issue “is broad enough that there is ambiguity,” says Mark Gruchy, an associate with Gittens & Associates in St. John’s.

“It does not surprise me that there is confusion,” says Gruchy.

The confusion stems less from what the legislation says and more from what it does not say. The Tobacco and Vaping Products Act, on which much of the Cannabis Act is modeled, allows for exceptions to promotion bans and restrictions “if no consideration is given by a manufacturer or retailer.” Despite relying heavily on the language in the Tobacco Act — what Gruchy says at times appears to have been a “cut and paste” — this qualifying phrase does not appear in the legislation governing the legalization of marijuana.

That omission poses potential freedom of expression issues, says Gruchy.

“I would argue a T-shirt with a statement like ‘Weed: Good Times and Munchies’ could fall within the definition of promotion and, despite coming into existence completely independent of the actual cannabis industry, could be viewed as illegal promotion. That could open people selling or making such products to seizure, fines and prosecution.”

The argument has merit, says Cara Faith Zwibel, director of the Canadian Civil Liberties Association’s Fundamental Freedoms Program in Ottawa.

“There is a risk,” she says, noting that under the Cannabis Act, “there is a lot more that is open to interpretation.”

Gruchy points out, for example, that there is no apparent restriction on tobacco-based books that could be considered promotional so long as the tobacco industry isn’t paying the author or the publisher.

“With cannabis, though, the legislation would appear to apply regardless of who was funding them,” he says.

There is also a legal conundrum, he notes. While the legislation wants to clamp down on glamorizing or normalizing cannabis use, it has apparently done so by restricting payment of any artistic or related endeavour for which the creator is paid.

“Ironically, it’s OK if you don’t get paid for it,” he says.

He cites a recent example of a reporter who explored the issue of fine dining and cannabis.

“How can it be constitutional for a paid journalist to be unable to produce such an article about a legal activity while a blogger could do it in their free time for no money and not break the law?”

Under the federal legislation, promoting cannabis or related accessories in a way that "could be appealing to young persons" or that "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" is illegal. However, Gruchy notes, there is a subculture around marijuana that predates the legislation and that has existed for decades.

“The Cannabis Act appears to shut those things down. This will run afoul of the constitution,” he says.

The removal of the qualifying consideration phrase may be a reflection of the difference between the tobacco and cannabis industries, says Zwibel.

“In many cases, the manufacturers and retailers in cannabis are more varied, including government.”

As a result, showings of sub-culture movie classics such as Dazed and Confused, a 1993 popular film that starred Matthew McConaughey, could be illegal under the act, even for fundraising purposes, says Gruchy.  

The legislation, he says, has gone “overboard.” “It would certainly seem to go so far as to indicate professors couldn’t write a scientific paper if they were paid. That would be captured in this legislation.”

Discretion may prevail, but that discretion is in the hands of enforcers. The freedom of expression issue arose in Newfoundland and Labrador following legalization of marijuana when CBC News reported a run-in between officials with the Newfoundland and Labrador Liquor Corporation and a cannabis accessory store in St. John's. According to the store owner, staff were warned not to use the word “cannabis.”

”To the extent entities try to enforce these things, we could see conflict,” says Gruchy.

Zwibel is concerned that the mere whiff of illegality could affect behaviour. There will be a problem, she notes, if the legislation is broadly interpreted. “But even if it is not enforced, it may lead to a chill if people interpret it that way.”

There may be a relatively easy solution. “The federal government could pass comprehensive regulations,” says Gruchy. If not, he notes, “I guarantee there is going to be litigation.”

  • More Research Required

    Matt Maurer
    There are a number of exceptions in the Cannabis Act which are not discussed in this article which fundamentally change the analysis. For example the literary, dramatic, musical, cinematographic, scientific, educational or artistic work, production or performance exception clearly would allow for Dazed and Confused to be shown.

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