Promoting and branding cannabis is one of the most important pillars supporting the shift from an illicit market to a legal market. However, the Cannabis Act creates significant restrictions on the promotion of cannabis and cannabis-related products. These restrictions severely limit the locations in which cannabis may be advertised and the content of such advertising. At the same time, our Charter of Rights and Freedoms guarantees the right to free expression under s. 2(b). The Supreme Court of Canada has held that advertising and commercial speech are protected speech under that section. Governments must justify any restrictions of commercial speech by proving that the restrictions are rationally connected with their objective, minimally impair the free speech right, and that the effects of the restrictions are proportional with their goal. Many provisions in the Cannabis Act and provincial cannabis licensing statutes are at risk of running afoul of this Charter guarantee.
The federal government built the regulation of cannabis promotion using nearly-identical provisions from the Tobacco and Vaping Products Act as a precedent. These provisions were the subject of two Supreme Court of Canada cases from 1995 and 2007, which, together, provide guidance on which provisions of the Cannabis Act may be unconstitutional. This article analyzes the current state of cannabis advertising, and the legal framework established by s. 2(b) of the Charter and the Supreme Court of Canada's tobacco advertising judgments. It then considers which provisions of the Cannabis Act and provincial cannabis statutes may violate the right to free expression, and suggests a way forward to maximize the success of the cannabis industry.
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