Authors: Drew Lafond, Evan Halbert
In conjunction with legalizing the consumption and cultivation of recreational cannabis, the federal government has implemented strict rules governing the advertising and promotion of cannabis and cannabis accessories.
Licensed retailers who contravene the restrictions outlined in the Cannabis Act, SC 2018, c 16 (the “Act”) may be subject to fines of up to $5 million or three years in prison. The severity of these potential penalties is compounded by the fact that many licensed retailers remain uncertain of how such restrictions will be applied and enforced.
Below, we consider the permissibility of various methods of advertising and promoting recreational cannabis.
Billboards, Newspapers and Other General Public Advertisements
Billboard, newspaper and other general public advertising of cannabis, cannabis accessories or services related to cannabis is permissible in accordance with the restrictions contained in the Act. Specifically, the Act prohibits the promotion of cannabis or a cannabis accessory or any service related to cannabis by:
- communicating information about price or distribution;
- advertising in a manner that is appealing to young persons;
- a testimonial or endorsement;
- depicting a person, character or animal, whether real or fictional; or
- evoking 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.
The Act permits authorized producers, retailers and distributors of cannabis to promote cannabis and/or cannabis accessories by providing related factual information to individuals who are 18 years of age or older.
This allows a licensed retailer to hold informational seminars in venues where young persons are not permitted by law. It is also permissible for authorized persons to advertise such events within a licensed retail store and/or by means of written communication to an individual who is 18 years of age or older and is identified by name or by telecommunication where reasonable steps are taken to ensure that such telecommunication is not accessible by persons under the age of 18.
The Act prohibits visitation contests, including anything that is not related to cannabis, such as the right to participate in a game, draw, lottery or contest, if it is provided as an inducement for the purchase of cannabis or a cannabis accessory.
Visitation contests that are not used as an inducement to purchase cannabis or a cannabis accessory are likely permissible under the Act. Each such contest, however, should be reviewed and considered in light of the prohibitions created by the Act.
Loyalty programs are prohibited under the Act. Customers must provide monetary consideration for cannabis and cannabis accessories, and vendors are prohibited from providing any service if it is intended to induce people to purchase cannabis or cannabis accessories. This includes providing loyal customers with discounts or offering “2 for 1” specials.
Licensed retailers are, however, able to provide communications to customers advertising that they carry certain products or that the price of a certain product has been reduced by means of written communication to an individual who is 18 years of age or older.
Discount programs, such as a senior’s discount, veterans discount or ladies night, are prohibited under the Act. Providing a discount for select individuals based on their personal characteristics would fall under a service being offered for the purpose of inducing the purchase of cannabis or cannabis accessories.
Using a brand element or retail store name in conjunction with a fundraising event is prohibited. The Act prohibits the display of, reference to or use, directly or indirectly, of a brand element related to cannabis and/or the name of a person that produces, sells or distributes cannabis, cannabis accessories or services related to cannabis in a promotion related to the sponsorship of a person, entity, event, activity or facility.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.