Packaging Prohibitions: A Closer Look at Some Interesting Quirks of the Packaging Regulations Under the Cannabis Act
Everyone knew that the marketing and promotion restrictions on packaging for licensed producers in the recreational market were going to be onerous.
The Cannabis Act (the “Act”) itself sets out a number of restrictions, including prohibitions on packaging that:
- could be appealing to young persons;
- sets out a testimonial or endorsement, however displayed or communicated;
- depicts a person, character or animal, whether real or fictional;
- associates the cannabis or one of its brand elements with a way of life; or
- contains information that is false or misleading.
On top of what is set out in the Act itself, in March, 2018, the Government of Canada released its proposed approach to the regulation of cannabis which contained some details of the Government’s proposed approach to packaging. This proposed approach discussed items such as:
- limiting the use of colours on packaging;
- setting standard font type, size and colour for brand elements relative to other information displayed on the package; and/or
- restrictions on the use of brand elements, including relative size, colour, and place on the package.
While these items gave a sense of what was likely to come, the most important set of rules relating to packaging was to be set out in the regulations under the Act. Indeed, section 25 of the Act explicitly prohibits the sale of cannabis that has not been packaged or labeled in accordance with the regulations.
On June 27, 2018, the Government released the regulations under the Act to the public and with them the set of detailed packaging rules that will apply to licensed producers across the country in the recreational market.
I do not propose to set out the complete set of packaging rules or an analysis on those rules in this post. Rather, this post will point out a few of the rules that I found to be of interest, either due to the Government’s creativity in closing loopholes before they even existed or due to the fact that the government has left open some wiggle room for creative marketing and promotion.
The Government has stipulated that the color of both the exterior surface and the interior surface of the packaging must be one uniform color. However, the regulations also provide that the interior surface may be a different colour than the exterior surface. Perhaps this exception was put into place so that producers could select their own colour for the exterior of the package while at the same time avoid having to be put to the cost of also changing the interior color of the package. For example, without this exception a producer who used a white container with a color label on the outside would be forced to either leave the exterior of its current packaging white or pay to have the interior colour changed as well (to match the label). Whether intended or not, the ability to use different colours on the outside of the package and the inside of the package will be pounced upon by some (or most) producers to create distinctive packaging in a highly restricted environment.
Under the regulations, the interior and exterior packaging must have a smooth texture without any raised features, embossing, decorative ridges, budges or other irregularities. However, these rules do not apply to features of a container that are necessary to “assist visually impaired individuals.” The Government did not specify that Braille must be used to trigger the exception. Arguably, raised letters setting out the name of the producer and the strain may be permitted to allow visually impaired individuals to identify the contents within the packaging.
Explicitly prohibited is the use of hidden features designed to change the appearance of the container, such as heat-activated ink or a feature that is visible only through technologically means. Fold-out panels, cut-out windows and the inclusion of inserts and leaflets are all prohibited, as is including any image or information on the seal within the packaging itself.
There is also bad news for producers who thought they could be creative and use the barcode as a means to squeeze in some promotion or marketing information, as it is stipulated that a barcode must be printed in black and white and not contain any image or design.
While the Government overall did a good job carrying out its objective to ensure that packaging and labeling will only be able to be used to a very limited extent by producers to further market and promote their product, clearly there remains some areas for creative thinking. Expect producers with bright marketing and creative teams to take full advantage of the wiggle room that has been afforded to them.