Can I Tell Customers How High They Will Get or The Effects of My Cannabis Product in Canada?

• Harrison Jordan
• Blog
• December 19, 2023

Surely in Canada you can legally represent to your customers how the cannabis you produce or sell will make them feel when they smoke it?

Right? Not so fast.

Let’s take a step back. The Food and Drugs Act (FDA) regulates all drugs, including all “substances” that are “manufactured, sold or represented for use in”, among other things, “restoring, correcting or modifying organic functions in human beings or animals.” Within the FDA is a set of regulations for Natural Health Products (NHPs), which are meant to capture drugs from natural sources that have not been designated as prescription-only status by Health Canada. To be sold to consumers, drugs under the FDA must generally obtain pre-market approval, signified by a DIN number or an NPN number if it’s an NHP. You can only get one by demonstrating safety and efficacy to Health Canada.

Cannabis WOULD be captured under the FDA and require pre-market approval, except that regulations expressly exempt cannabis from the purview of the FDA due to it being regulated under the Cannabis Act and its regulations.

That exempting regulation under the FDA, called the “Cannabis Exemption (Food and Drugs Act) Regulations” generally exempts cannabis from the FDA (and therefore the NHP regs under them), EXCEPT when, among other conditions, it “is represented for use in modifying organic functions in human beings or animals.”

Your ad about how your product produces a certain body or head high? Or a budtender relaying that to a potential customer? That’s modifying organic function. Which makes the cannabis in question not-exempt from the Food and Drugs Act. Which in turn is a violation of the Food and Drugs Act because cannabis sold to consumers in this country does not have the pre-market approval that the FDA requires for other drugs sold to consumers.

This isn’t new, and the exemption (and the, er, exception to the exemption) has been part of the Food and Drugs Act since cannabis was legalized in 2018. Curiously, the federal government could have changed this but decided not to: It did in 2022 amend the exemptive regulation so that it spoke to cannabis sold for use in non-therapeutic research, but left everything else in tact.

This is all in addition to the Cannabis Regulations provision that prohibits promotion that “could create the impression that health or cosmetic benefits may be derived from … the cannabis.”

Will you get a warning letter from Health Canada for mere claims that your cannabis product gives off a “head high”? Will Health Canada start charging budtenders with violating the FDA?

Quite unlikely.

Health Canada for its part says that its focus for health-related promotion enforcement are on “health claims being made for serious diseases such as depression, addiction, cancer, among others, as referenced in Schedule A.1 of the Food and Drugs Act”.

But, you should know that it’s always a risk.