Marketing an Unmarketable Product: The Need for a Less Stringent Cannabis Legal Framework in Order to Develop a Sustainable Licit Market

Abstract

In 2018, Canada became the second country in the world to legalize the sale and use of marijuana. Legalization ensued with the coming into force of the Cannabis Act, a framework that is aimed at protecting the health and safety of citizens, and curtailing Canada’s long-standing illicit market.

This paper explores how the current cannabis framework, in practice, leads to unintended consequences that frustrate certain policy objectives outlined in the Cannabis Act. In particular, the current legal framework with respect to marketing regulations unduly restricts the ability of licit cannabis producers to compete and succeed in the long-run. Success of the licit market is critical in order to combat the illicit market, and failure would further undermine public health and safety. In addition to protecting public health and safety, Canada’s cannabis legal framework must make practical business sense, enable healthy competition and be forward-looking.

Note: Beverly Cheung was awarded the Canadian Bar Association’s 2019 English Langlois Prize for this paper. The Langlois Prize is presented on an annual basis for the best English and French scholarly papers received relating to Canadian business law.

Beverly was also awarded the J.S.D. Tory Research and Writing Award from Osgoode Hall Law School and Torys LLP for this paper in recognition of the very best in student writing.

Keywords: Cannabis, Marijuana, Marihuana, Business Law, Marketing, Marketing Regulations, Marketing Restrictions