Senate Committees

Senator Judith Seidman Introduces an Amendment to Bill C-45, the Cannabis Act, at Third Reading

Honourable Senators, questions about advertising and promotion are at the heart of our debate on Bill C-45. The legal emergence of a burgeoning industry dedicated to the production of a product with demonstrated health harms should give us pause about the conditions in which that industry should be allowed to operate. Deloitte has estimated that the base retail market value for recreational marijuana could be as high as $22.6 billion. This exceeds the value of the legal market for both tobacco and alcohol, and it is in this context that we must consider questions about advertising, packaging and promotion of cannabis.

Of course, advertising and promotion are standard practices for any industry to increase its customer base. We are all too familiar with the marketing techniques used by alcohol and tobacco companies to maximize consumption of their products – and consequently – their profits. We have every indication that the Canadian cannabis industry will be no different. These companies are like any other: profit-driven, and governed by a desire to create value for their shareholders.

Recent history has proven just how difficult it is to reign in these legal industries. We have experienced varying degrees of success in rolling back permissive advertising and promotion for alcohol and tobacco, although we have made much more progress with cigarettes!

However, we are now faced with a unique opportunity as legislators: we have a clean slate with a new market! If recreational cannabis is regulated strictly from the outset, we reduce the likelihood of setting up an ongoing conflict between government and an industry that is seeking to aggressively promote its products. The Social Affairs committee acknowledged this inevitability in its observation calling on the government to impose a moratorium on the loosening of regulations on the branding, marketing and promotion of cannabis for 10 years. This observation was based on a recommendation from Drug Free Kids Canada, the same organization that government partnered with on its ‘Cannabis Talk Kit’ for parents.

Indeed, the government has been told repeatedly that marketing restrictions will make or break the overall effectiveness of its system. Evidence gained over the years from our experience with the tobacco industry shows that partial restrictions on marketing, like the ones proposed in Bill C-45, are largely ineffective at discouraging use because companies just shift their advertising spend to other forms of non-banned marketing.

Honourable Senators, that is why I am proposing an amendment to Bill C-45 brought forward by the Non-Smokers Rights Association to address the issue of “brand stretching”, a marketing strategy that is effective in growing brand awareness to help increase consumption. In its current form, Bill C-45 contains an exception allowing for companies to distribute promotional products with their brand logo, with vague prohibitions on products that “could be appealing to young people”. Nevertheless, we are already seeing a proliferation of these products, with marijuana company logos emblazoned on t-shirts, backpacks, and iPhone cases. To think that these products won’t develop a cachet among teenagers is delusional; we’ve seen this story before with tobacco. And, we know that companies will count on lax enforcement of provisions, particularly those that require interpretation.

The exemption for brand stretching is an obvious loophole for brand promotion in a piece of legislation which claims to be based on principles of public health. But to quote Pippa Beck with the Non-Smokers’ Rights Association: “Permitting cannabis brand elements on T-shirts and ball caps, mugs, you name it, is not in keeping with a public health approach.” Amending section 17(6) of Bill C-45 to prohibit the use of cannabis brand elements on items that are not cannabis or cannabis accessories, regardless of whether they would be considered appealing to young people or associated with an attractive lifestyle, would close this loophole and reduce the possibility that cannabis companies will market to our kids by stealth.

Now, it was just a few months ago that Senator Dean brought to our attention a report from the Centre for Addiction and Mental Health (CAMH). In debate at Second Reading in this Chamber, the sponsor of the bill pointed to this report as the rationale for the government’s proposal to legalize cannabis, and referred to the report’s recommendations as – and I quote: “eminently solid, balanced and sensible advice.”

The report offers 10 basic principles to guide regulation of legal cannabis use, which should be considered a starting point, in other words, minimum requirements for a public-health focused regulatory framework. Principle 6 states clearly that – at minimum – governments must “prohibit marketing, advertising, and sponsorship.”

To quote at length from the CAMH report endorsed by the sponsor of the bill:

“[A]s we know from tobacco and alcohol, private-sector actors in the legal cannabis market – like any profit-motivated entity – would seek to push the boundaries of health-focused regulation. But unlike tobacco and alcohol, in Canada we have the opportunity to pre-empt this conflict that exists between public health goals and the profit motive: “For most jurisdictions cannabis offers a blank canvas; an opportunity to learn from past errors…without a large-scale commercial industry resisting reform.”

It’s curious, then, that the sponsor abstained from voting on this amendment that would tighten restrictions on the industry when it was first introduced at committee. It is stranger still that the CAMH report, cited for years by this government as an endorsement of its cannabis legalization project, seems to have disappeared from CAMH’s website. But no matter, I thank Senator Dean for providing me with a hard copy.

The government says it doesn’t want to promote cannabis use, especially among young people. But Bill C-45, as currently written, allows cannabis companies to give away branded t-shirts, hats, and other items like iPhone cases. The provision is completely at odds with the stated purpose of the bill, and moreover, it is unenforceable. Who decides if an item is appealing to young people? Who will act to police proliferation of these products?

Honourable Senators, let me quote Marc Paris from Drug Free Kids Canada once more:

“The government’s approach to legalization of recreational cannabis was to better regulate and control the sale and distribution in order to protect our children. Let’s not leave a crack in the door for our kids to become targets of exploitation by big business.”

I therefore move that Bill C-45 be not now read a third time, but that it be amended in clause 17, on page 19, by deleting lines 16 to 27.