Health Canada is licensing private producers to produce and sell medical marijuana under Canada’s new Marihuana for Medical Purposes Regulation (“MMPR”). Since marijuana is a narcotic, the advertising and promotional activities available to marijuana producers licensed under MMPR are the same as those available to pharmaceutical companies in Canada.
The Narcotics Control Regulation (Canada) (“NCR”), s. 70, prohibits “any advertisement to the general public respecting a narcotic”. The term “advertisement is defined broadly to encompass any “representation” that “directly or indirectly” promotes the sale of a narcotic. It is not advertising per se that is prohibited but advertising to the “general public”. The NCR also requires that any advertisement include the symbol “N”, “clearly and conspicuously”, to put consumers on notice that what is being advertised is a narcotic.
How are licensed medical marihuana producers to reach customers? The Distinction Between Advertising and Other Activities (the “Drug Ad Policy”) policy statement issued by Health Canada to provide guidance to the pharmaceutical industry potentially provides some important guidance on promotional activities from press releases to consumer brochures to journal supplements. In the Drug Ad Policy, Health Canada draws the distinction between advertising to promote the sale of a drug and activities that are not primarily intended to promote the sale of a drug (e.g., education, scientific exchange, labeling, shareholder’s report, etc.), the former being prohibited and the latter being permitted to be made to the general public. Licensed medical marijuana producers are encouraged to review and observe the Drug Ad Policy.
In addition, licensed medical marihuana producers should also educate themselves on the labeling and packaging requirements set out in the Food and Drug Act (Canada) (the “FDA”). Specifically, the FDA prohibits labelling, packaging or selling in a manner that is false, misleading or likely to create an erroneous impression about the character or safety of the drug. For example, unsubstantiated health claims cannot be put on product packaging.
The MMPR also imposes certain obligations on medical marihuana licensed producers regarding advertising. Under Section 16 of the MMPR “A licensed producer must include their name, as set out in their licence, on all the means by which the producer identifies themself in relation to cannabis, including advertising, product labels, orders, shipping documents and invoices.”
If you have any questions or would like more information regarding advertising medical marijuana in Canada, call or email Koby Smutylo at 613 869 5440 or koby@lawyercorporation.ca.
