Canada’s Cannabis Act prohibits the selling of cannabis or cannabis accessories in a package or label:
(a) that could be appealing to young persons;
(b) that sets out a testimonial or endorsement;
(c) that depicts a person, character or animal;
(d) that associates cannabis or one of its brand elements to a way of life especially one that includes “glamour, recreation, excitement, vitality, risk or daring”; or
(e) that contains false, misleading or deceptive information.
Additionally, the Act allows the Governor in Council to make several regulations to enable its enforcement, including regulations “specifying terms, expressions, logos, symbols or illustrations” to be forbidden on cannabis or cannabis accessory packaging and labelling.
The Cannabis Regulations, which detail packaging and labelling requirements, were enacted following consultations by Health Canada, where questions arose over whether strict plain packaging rules prohibiting the display of any branding or logos should be applied. Luckily for cannabis brand owners, the approach adopted is not so extreme, mostly because it was argued that “the ability for the legal industry to brand their products was necessary to allow them to differentiate their products from their competitors, including illegal producers operating outside of the legal framework”. The regulations therefore allow cannabis producers to display one brand element on their packaging in addition to the brand name, subject to a considerable number of restrictions.
The significant restrictions on packaging and labelling set out in the Regulations will make it challenging for industry to create distinguishable brands and to stand out on the shelves. Only certain elements, in determined size, fonts and colour can appear on the packaging. Colour must be uniform, the finish must be matte and smooth in texture, the packaging should have no hidden feature, scent, sound, cut-out window, or special covering. As a result, brand owners in the cannabis industry will have to be very innovative if they wish to create strong brand identity. The branding chosen by the producers will have to be particularly distinctive and well enforced over time in order for them to acquire any significant value.
Interestingly enough, plain packaging is now also a vivid topic in the Canadian tobacco industry. Health Canada launched consultations in June 2018 on a proposed Tobacco Products’ Regulations (Plain and Standard Appearance) which proposes to “standardize the appearance of tobacco product packages, as well as the appearance of the tobacco products themselves”. The proposed regulations seem to be even stricter than the Cannabis Regulations when it comes to the limitations with respect to brand colours, logos and images. If these regulations are adopted, it will be very interesting to see how tobacco brand owners will be forced to change their branding strategy.