One area of particular interest of the Cannabis Act for many in the cannabis industry is what the Act has to say about cannabis advertising. While there is much that still needs to be fleshed out in the yet to be drafted regulations, the Act already does contain some explicit “dos” and “don’ts”. Today’s post focuses in more detail on one of the “don’ts”; lifestyle advertising.
Reference to lifestyle advertising makes its first appearance in section 17(1) of the Act. This section provides that unless otherwise authorized under the Act, it is prohibited to promote cannabis or a cannabis accessory or any service related to cannabis, including…
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.
Later on in section 17(6), lifestyle advertising appears again, this time in relation to an exception which provides
Subject to the regulations, a person may promote cannabis, a cannabis accessory or a service related to cannabis by displaying a brand element of cannabis, of a cannabis accessory or of a service related to cannabis on a thing that is not cannabis or a cannabis accessory, other than… a thing that is associated with a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.
Similarly, sections 26 and 27 prohibit the selling of cannabis or a cannabis accessory in a package or with a label that associates the cannabis, cannabis accessory, or one of its brand elements 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.
The wording “associates…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” is not new. In fact it was lifted by the federal government verbatim out of section 22 of the Tobacco Act.
If we want to learn more about what this phrase means, its best to look to the 2007 Supreme Court of Canada case of JTI-Macdonald Corp. that helped define this ambiguous phrase.
JTI saw the Attorney General of Canada, supported by a number of provincial Attorneys General and the Canadian Cancer Society, square off against a number of tobacco manufacturers over the constitutionality of certain provisions of the Tobacco Act.
The restriction on lifestyle advertising, as defined in section 22 was one of the sections at issue. The Supreme Court of Canada held that the section was constitutional.
In discussing the wording of section 22 and in attempting to give the words meaning, the Supreme Court held that:
(a) even advertising that does not appear on its face to connect a lifestyle with a tobacco product is prohibited if it subliminally connects a tobacco product with a lifestyle;
(b) the phrase “evokes a positive or negative emotion or image” should not be read so broadly as to encompass every perceptual impression but should be interpreted in a way that leaves room for true information and brand-preference advertising (which is permitted under the Tobacco Act); and
(c) that the words “such as one that includes glamour, recreation, excitement, vitality, risk or daring” are not to be read as restricting the “way of life” that is covered by the prohibitions but rather ought to be read as mere illustrations of lifestyle advertising.”
The Supreme Court noted that
lifestyle advertising spans the spectrum from the bold association of the Marlboro man with a cowboy culture to the subtle suggestion emerging from a cup of coffee or a bath scene that evokes tobacco use through learned prior imagery… A ban on lifestyle advertising must catch not only clear associations, but subtle subliminal evocations…True information and brand-preference advertising continues to be permitted… Such advertising crosses the line when it associates a product with a way of life or uses a lifestyle to evoke an emotion or image that may, by design or effect, lead more people to become addicted or lead more people who are already addicted to increase their tobacco use.
Sound a bit confusing? Don’t worry, the Chief Justice of the Supreme Court as well as all of her colleagues agreed that the issue was a complicated one, noting that “the distinction between information and brand-preference advertising directed to market share, on the one hand, and advertising directed to increased consumption and new smokers, on the other, is difficult to capture in legal terms.”