2019 CAFLP Annual Conference Panel Recap: “Cannabis and Consumption: Emerging Challenges in Regulating Scale”

On November 8th, expert lawyers in the field of cannabis law spoke at a panel on emerging challenges and compliance issues from the new Cannabis Regulations, “Cannabis and Consumption: Emerging Challenges in Regulating Scale”.

The panel began with an introduction by Sara Zbrovski (Stikeman Elliott), who presented the key requirements for a processing license under the new October regulations and the distinction between micro and standard processing licenses. She highlighted aspects of packaging, labeling and promotion in the context, and elucidated the tight restrictions on promotion within age-gated environments, and potential issues that arise from the lack of clarity in the legislation in terms of enforcement.

The next panelist, Giselle Davidian (Willms & Shier Environmental Lawyers LLP), went on to talk about the Cannabis Regulations from the lens of environmental law – particularly environmental issues related to the growing of cannabis, i.e., knowing environmental risks, and creating environmental management systems. She elaborated on problems relating to odour control and waste disposal and destruction, and presented the questions of whether cannabis fits under the definition of agriculture such that licensed producers can avoid Environmental Compliance Approvals (ECAs) by relying on agricultural exemptions, and whether cannabis farming is agricultural in the sense that it falls under the Farming and Food Production Protection Act (FFPPA).

Jean-Pierre Lévesque (Cain Lamarre, Canadian Association for Food Law and Policy Board of Directors) then expanded on these issues and put forward a comparison between the Safe Food for Canadians Act (SFCA) and the newly amended Cannabis Regulations. As edible cannabis is intended to be consumed in the same manner as food under the FDA, the issue of classification arose again – is it food, an ingredient added to food, or is it food added as an ingredient? Importantly, this inquiry raised the question of whether the SFCA should apply to food in edible cannabis manufacturing establishments, and whether a license by the CFA is required.

Finally, Jack Lloyd (Cannabis Lawyer), in his presentation on the history of litigation in the area of cannabis regulation with a focus on medical marijuana legislation, highlighted case law on Charter challenges made against Canada’s medical marijuana acts. This case law slightly expanded the client-base for designated personal production licenses and resulted in the enactment of the ACMPR. He also emphasized the injunction granted under Allard v Canada (2016 FC 236), which allowed for 30 000 cannabis gardens across Canada to legally continue growing cannabis provided they attained their license within the relevant period. He then discussed the subsequent impact on grey/black market food producers. 

Health Canada’s protectionist approach in this very new area of law appears to be the key element of the presentations, and despite some of its downfalls, it was the overall favoured approach over a more relaxed stance. Some of the issues that emerged from the discussions brought to light the lack of enforcement and the difficulties industries currently face in seeking licensing as a result of the blurry lines drawn in the regulations.