“If you grow it they will buy it” seems to be the mantra of the day.  But, in a world of tens – and soon to be hundreds  – of licensed producers under Canada’s Marihuana for Medical Purposes Regulations (“MMPR”), how will each licensed producer differentiate itself from the others?  Price and product experience are probably the obvious ways.  The challenge for licensed producers will be, in a competitive marketplace, how to communicate “product experience”.   There are, of course, quantitative measures to advertise such as % of THC and % of CBD.  However, there will be lots of producers advertising product with similar percentages of THC and CBD.   And, they are all telling consumers their products are “premium”, “high quality” and “the best” marijuana – whether or not the product price is $7/gram or $12/gram.

Should medical marijuana licensed producers take a lesson from the wine, beer or coffee industry for ways to market and differential their marijuana products?  This will be tempting, but illegal and likely to at best generate unwanted attention from Health Canada and at worst fines and jail time.   Big pharma is where licensed producers should be looking to for advertising and marketing lessons.

Marijuana is a narcotic and must be treated as such.  It is not a lifestyle, comfort or status product.   Marijuana must be treated as a medical product and the advertising and promotional activities available to marijuana producers licensed under MMPR are the same as those available to pharmaceutical companies in Canada except medical marijuana is approved by Health Canada for “medical purposes” but not for any specific treatment, which means the drug cannot be associated with any specific health claim.

A very much simplified summary of the law regarding advertising marijuana is as follows:

• Advertisement to the general public is prohibited;
• “Advertisement” is defined broadly to encompass any “representation” that “directly or indirectly” promotes the sale;
• Advertising any drug to the general public as a treatment, preventative or cure for certain diseases, disorders or abnormal physical states, including depression, is prohibited.  Health Canada takes the position that if the primary purpose of the advertisement is to promote the sale of the drug, such advertisement may not be made to the general public;
• Certain “help-seeking” and “reminder” ads are allowed, but these ads must not include a specific brand name or manufacturer or imply that a drug is the sole treatment available i.e. Ads that discuss a condition and suggest consumers ask their doctor about an unspecified treatment are permitted and no risk information is required to be included;
• It is illegal to label, package, treat, process, sell or advertise any drug in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety;
• Any advertisement must include the symbol “N”, “clearly and conspicuously”, to put consumers on notice that what is being advertised is a narcotic;
• 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;

So, how should an MMPR licensed producer of medical marijuana differentiate and “sell” its product?

Our advice is to focus on creating a brand focused on the producer – not the products.   Stand-out and be attractive to your target medical marijuana customers.

Second, have a “private” area on your website to promote marijuana products, but this private area should only be accessible to persons with medical marijuana prescriptions and certain other professionals (i.e. doctors and pharmacists).   It is important that the promotional information not be made “public”.

If you have any questions or would like more information regarding advertising medical marijuana or Canada’s Marihuana for Medical Purposes Regulations, call or email Koby Smutylo at 613 869 5440 or koby@lawyercorporation.ca.