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Canada Moves One Step Closer to Legalizing and Regulating Cannabis

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Life Science and Health Law Bulletin

Popular media is buzzing with news of the recent federal government report outlining a framework for the legalization and regulation of cannabis in Canada (the "Final Report"). The Final Report was drafted by the nine member Task Force on Cannabis Legalization and Regulation ("Task Force"). The Task Force was given the mandate to consider the framework under which cannabis could be legalized in Canada, and, in so doing, to strike a balance between implementing appropriate restrictions and minimizing the perceived harms (both personal and societal) associated with the legalization of cannabis use.

Chaired by former federal cabinet minister Anne McLellan, the Task Force was expected to consult and advise on the design of a new framework for legal access to cannabis, consistent with the government's commitment to 'legalize, regulate, and restrict access,' as set out in the Prime Minister's December 2015 Speech from the Throne.

The Task Force engaged in a consultation process with all levels of government, experts, patients, and jurisdictions that have already legalized cannabis for non-medicinal purposes. Its Final Report is built upon various guiding principles, including the protection of public health and safety, compassion, fairness, collaboration, flexibility and a commitment to evidence informed policy.

These guiding principles are echoed within the major themes of the Final Report, namely:

  1. Minimizing harms of use;
  2. Establishing a safe and responsible supply chain;
  3. Ensuring public safety and protection; and
  4. Accessing cannabis for medical purposes.

1. Minimizing Harms of Use

The Task Force examined a range of protective measures in order to minimize the harms of cannabis use, such as a minimum age requirement, promotion and advertising restrictions, and packaging and labelling requirements. It set out a list of recommendations aimed at minimizing harm and curbing risks related to children and youth, overconsumption, vulnerable populations and interactions with the illicit market. Of note, the Task Force recommends that the federal government:

  • Minimum Age - Implement a national minimum purchase age of 18, with the right of provinces and territories to harmonize this limit with their minimum age to purchase of alcohol;
  • Promotion, Advertising and Marketing Restrictions - Implement comprehensive restrictions for the advertising and promotion of cannabis, similar to restrictions under the Tobacco Act, including the requirement of plain packaging containing pre-determined information, the imposition of strict sanctions on false and misleading promotion, and the ability to properly enforce violations on both traditional and social media outlets;
  • Cannabis-Based Edibles and Other Products - Implement regulatory measures for edible cannabis, such as prohibitions on products deemed "appealing to children", prohibitions on mixing cannabis with other products, such as tobacco, nicotine, caffeine and alcohol, and restrictions on packaging, labelling and maximum amounts of THC per serving;
  • Tax and Price - Develop a tax regime that includes equitable distribution of revenue and strategies to encourage consumption of less potent cannabis, including a price and tax scheme based on potency;
  • Workplace Safety - Promote occupational health and safety policies relating to cannabis implementation.

2. Establishing a Safe and Responsible Supply Chain

The Task Force considered the most appropriate roles for the federal, provincial, territorial and local governments with regard to establishing a safe and responsible cannabis supply chain (production, distribution and retail). The Task Force recommendations included that:

  • Production - The federal government regulate the production of cannabis, using license and production controls to encourage a diverse and competitive market;
  • Retail - The provincial and territorial governments, in close collaboration with municipalities, regulate the retail sale of cannabis, avoiding co-location of alcohol or tobacco and cannabis sales and limiting the density and location of storefronts;
  • Distribution - The provinces and territories regulate and enable the wholesale distribution of cannabis; and
  • Personal Cultivation - Personal cultivation for non-medical purposes be permitted if specific conditions are met, with a proposed limit of four plans per residence.

3. Enforcing Public Safety and Protection

In terms of enforcing public safety and protection, the Task Force considered various sanctions for those who contravene the law, ranging from administrative to criminal penalties. In particular, it considered whether the existing laws or a new law would provide the most appropriate legal framework for ensuring public safety. The Task Force recommends that the federal government:

  • Illegal Activities - Limit criminal prosecution for less serious offences, maintain criminal offences for certain illegal activities (such as illicit production and trafficking), and implement administrative penalties for contraventions of licensing rules on the production, distribution and sale of cannabis;
  • Personal Possession - Implement a personal possession limit of 30 grams of non-medical dried cannabis and a corresponding sales limit for dried cannabis (with equivalent limits for other forms of cannabis);
  • Place of Use - Extend current restrictions on the public smoking of tobacco products to the smoking of cannabis products, though dedicated places, such as cannabis lounges, could be exempted; and
  • Impaired Driving - Conduct further research to determine whether or not to establish a per se limit as part of a comprehensive approach to cannabis-impaired driving.

4. Medical Access

In Canada, medical cannabis falls within the purview of the Access to Cannabis for Medical Purposes Regulations ("ACMPR") and is a controlled substance within the meaning of the Food and Drugs Act. The ACMPR allows access to medicinal cannabis both via licensed producers and by providing patients with the option to produce their own supply of cannabis for medical purposes. The Task Force considered whether Canada should have a single system or two parallel systems of cannabis regulation: one covering the recreational use of cannabis and the other for medical access to cannabis. In formulating its recommendations, the Task Force considered access, affordability, strains, potency, quality, public safety and adequacy of supply. The Task Force suggests that the federal government maintain separate and distinct medicinal and recreational use legal frameworks. Interestingly, the Task Force held that the same tax system should be applied to both medical and recreational legal systems.

Implementation and Next Steps

The Final Report outlines the various issues and requirements that must be satisfied in order to ensure the successful implementation of a regulatory framework for legal access to recreational cannabis, including:

a) the need for increased production and distribution capacity,

b) the need for oversight of distribution, retail, quality control and regulatory compliance;

c) the need for co-ordination across jurisdictions with regard to the research and surveillance of cannabis use; and

d) the need for organized, multi-jurisdictional co-ordination, communication and collaboration.

The federal government has promised to table legislation in the spring of 2017. However, we expect that it may take considerably more time for the bill to be studied and eventually passed into law. Nevertheless, this Final Report signals an ideological shift in the way cannabis is regulated in Canada. It is a clear and unequivocal push towards a new frontier for business. The legalization of cannabis could mean the advent of a thriving new economy, with businesses creating derivative, peripheral and accessory products and services to facilitate the use of cannabis and its access to the larger public.

While we wait with anticipation, the Task Force has called for ongoing research and surveillance on the possible effects of such legislation, and has left open the door for flexibility to adapt and respond to ongoing and emerging policy, and perhaps political, needs.


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