This year, an independent expert panel was appointed to conduct a legislative review of the Cannabis Act. The panel heard from a wide range of different stakeholders and experts, including industry groups, consumers, public health officials, researchers and academics, youth groups, law enforcement, and First Nations communities, among others. In culmination of the expert panel’s first phase of work, it published the “What We Heard Report” this month. The report comes five years after the Cannabis Act initially came into force in October 2018.
The report contains a summary of the cannabis regulatory framework, key data brought to the panel’s attention, and the perspectives shared with the panel by stakeholders and experts. The report focuses on eight key areas: public health; youth; First Nations, Inuit and Metis; home cultivation; economic, social, and environmental impacts; adult access; deterring criminal activity and displacing the illicit cannabis market; and access to cannabis for medical purposes. It also contains detailed and helpful cannabis use statistics, products used and methods of consumption, use data by province and retail store distribution per capita.
As the report is lengthy, this article focuses only on areas that industry players have been keen to see amended, and the panel’s observations on differing stakeholder viewpoints on these issues. The overarching message of the report is that the policy objectives of public health and the protection of young persons will continue to be the guiding light as the cannabis regulatory framework evolves over time. These policy objectives are likely to inform the panel’s ultimate recommendations for the key pain points felt by industry players.
10 mg Edible Limit
The report noted contrasting observations from different stakeholders on the limit of 10 mg of THC per package of edibles. Industry stakeholders have long complained this limit is too low, especially compared to the relatively high concentration limits for concentrate products. Excess packaging waste was also cited as an environmental concern with this limit.
Public health stakeholders firmly held that there was no need to increase the 10 mg of THC limit for edibles because frequent cannabis users typically smoke or vape instead of using edibles, and novice cannabis users are more likely to choose edibles. Therefore, 10 mg THC limit was positioned as a reasonable upper limit for a single package to limit the risk of overconsumption by novice users.
Some public health participants went even further and suggested that the maximum THC concentration should be limited in all product forms, citing incidents of accidental consumption by children in support of this measure. However, others suggested that these incidents were largely attributable to illicit products, which are often packaged to look like candy and other conventional food products.
Packaging and Advertising
There appeared to be more alignment between industry stakeholders and public health representatives on other aspects of packaging and advertising.
Public health stakeholders took the view that most promotion activities undertaking by licensed producers and retailers have been in compliance with the Act’s restrictions. However, some noted that youth exposure to non-compliant promotion continues to occur, for example from advertisements on social media and other apps commonly used by youth (e.g. Instagram and SnapChat).
Public health stakeholders and industry stakeholders tended to agree on the suggestion to simplify and streamline packaging and the information on product labels (for example, removing the requirement to label the quantity of both THC and total THC, and allowing the use of QR codes to convey more detailed product information to interested consumers).
Similarly, industry stakeholders noted that consumers having more information about products and their effects would help consumers make more informed choices. Industry stakeholders recommended that producers and retailers be permitted to communicate more information to consumers on product packages, labels, and the in-store environment. Examples of information included cannabis testing results, information on terpenes, brand narratives, the ability to highlight product attributes, or the agricultural practices used in the production of the cannabis. Health Canada officials took the view that these examples could all be permissible, provided they do not contravene federal requirements (like false and misleading advertising, appealing to young persons, and lifestyle promotion).
These measures would also help industry players differentiate themselves from other companies. They noted this is currently difficult to do because of stringent promotion, packaging, and labelling restrictions. There was also some concern that Health Canada’s guidance is not always clear as it relates to promotion and advertising activities, and it does not always have consistent applications of the regulations.
Public Education
The panel found there appeared to be considerable ambiguity amongst key players as to who should be responsible for educating the public on specific characteristics of cannabis.
The report acknowledged that currently a “grey market” exists where people are most likely to gather information from informal channels, such as family members, friends, people with experience using cannabis, and online forums. This is partially due to the fact that there are knowledge gaps and general discomfort with the subject matter that exists within the health care community. People then turn to budtenders at retail stores for answers to questions about the uses and health effects of cannabis, notwithstanding that it is prohibited for budtenders to supply that information. Federal licence holders and retailers also expressed uncertainty as to whether they are permitted to provide education on characteristics of cannabis, or whether this would be in contravention of promotion rules.
Participants spoke about the need for education of health care professionals to close this knowledge gap. Some provincial governments also suggested the framework be amended to allow retailers and labels to provide information on responsible use, dosing, and expected effects of given products.
Similarly, there appeared to be general agreement among stakeholders for the need for more informative health warning messages and product-specific labelling that are tailored to the product format (for example, putting a smoking warning on a topical product is not helpful). Additionally, they raised the need for public education efforts to, for example, show how to interpret the cannabinoid content on the label, and how to distinguish legal from illicit products especially when buying online.
Excise Tax
Industry stakeholders have loudly called for excise tax relief, as they assert the tax level impacts their viability. However, public health stakeholders and other policy professionals argued against any change to cannabis taxation, given the role that pricing can play in protecting public health by reducing demand. There were also suggestions that tax revenue could be a source of funding for public education activities.
Other Harm Minimization Efforts
The report discussed a variety of other harm minimization efforts put forward by diverse stakeholders.
In general, public health stakeholders wanted to see more regulation addressing harm minimization. For example, they recommended implementing more rigorous quality assurance standards around vaping products and restricting the sale of flavoured vaping products. Public health stakeholders also proposed the implementation of controls on retail density to reduce public exposure to cannabis products, as well as prohibiting the co-located sale of alcohol and cannabis. They also suggested measures like requiring lockboxes for cannabis storage in the home, and THC labelling directly on products, to further reduce accidental consumption by youth.
Industry representatives pointed to different reasons for ongoing harm, mainly stemming from the persistence of the illicit market. Industry players explained how illicit products remained widely available due to inconsistent enforcement against the illicit market, the pricing of legal cannabis products compared to those in the illicit market, the ready availability of illicit edibles in a higher than 10mg THC per package format, and unwieldly restrictions on promotion, packaging and labelling which impeded public education about products. These factors have forced legal players to compete directly with the illicit market.
Moreover, industry representatives cautioned governments not to assume the growth of the legal cannabis market has a negative impact on public health. For example, in some situations, consumers use cannabis as an alternative to other harmful substances, including, alcohol, tobacco, opioids, and illicit cannabis products, and can even help harm reduction efforts to transition away from those kind of products.
The panel noted there is still a lack of progress on research on cannabis and its effects to be able to draw a firm conclusion on the overall impact of legalization on public health. Some hurdles that have made research efforts difficult are the impact of the COVID-19 pandemic and researchers’ observations that the clinical trial framework under the Food and Drug Regulations precludes using cannabis products to the standards under the Cannabis Act.
Home Cultivation
The panel did not hear many comments about home cultivation of cannabis. This was in contrast to the run up to legalization, where there was significant Parliamentary debate about home cultivation. Law enforcement and public safety stakeholders acknowledged that the four-plant allowance has not been problematic from a law enforcement perspective.
Next Steps
The next phase of the panel’s work will focus on providing advice and recommendations to the Minister of Health and the Minister of Mental Health and Additions on areas of the legislative framework and its implementation that may benefit from improvement or reform. They will conduct additional engagements in fall 2023. They will also prepare a final report for the Ministers with the panel’s assessment of the framework, and their advice and recommendations by approximately March 2024. The panel welcomes further feedback during this process.
Perhaps tentatively, we can expect recommendations to allow more product information and public education for cannabis products, given that most stakeholders seemed to agree at least to some extent on these issues. However, given stakeholders’ contrasting views on 10 mg edibles limits, excise taxes, increased access to promotion, and other harm minimization measures, it seems likely the policy goals of public health and protection of young persons may prevail in the panel’s forthcoming recommendations for legislative amendments.