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Health

Government faces balancing act on marketing, packaging of legal marijuana

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VANCOUVER — David Brown’s marijuana marketing students are often shocked to learn how difficult it is to — well — market marijuana.

Advertising medical cannabis is essentially banned in Canada, with some exceptions. Restrictions on recreational weed are set to be a bit looser, but Brown still advises students to think of the constraints as opportunities.

“These limitations can really aid in creativity. Marketing weed isn’t difficult, but marketing a highly regulated cannabis product is a lot more of a challenge,” said Brown, an instructor in Kwantlen Polytechnic University’s cannabis professional series.

As legalization looms, observers say Ottawa faces a tricky balancing act on marketing. Large growers say branding is necessary to convince consumers to switch to the legal market, while health advocates call for plain packaging and strict advertising limits.

The Cannabis Act, which would legalize recreational marijuana next July, would restrict marketing similarly to tobacco. It would ban promotion that appeals to youth, contains false or misleading statements or depicts people, celebrities, characters or animals.

It would allow ads that present facts or promote brand preference. But they could only be shown in places where youth are not legally allowed, or broadcast if “reasonable steps” have been taken to ensure they “cannot be accessed by a young person.”

The rules have been criticized as hazy. It’s unclear, for example, whether a commercial could air before a TV show or movie that is intended for adult audiences or how Internet ads would be policed.

Health Canada spokeswoman Tammy Jarbeau said the “reasonable steps” to ensure an ad cannot be seen by a young person would depend on the circumstances. For example, websites could use age verification mechanisms, she said.

“This would provide an opportunity to communicate factual information about cannabis, as well as information about a product’s brand characteristics, to allow adult consumers to make informed decisions,” she said.

She said the government was not considering changes to the advertising provisions of the legislation, but if it’s passed by Parliament, Health Canada will develop guidance documents to help industry comply with the rules.

Seventeen licensed producers have formed a Coalition for Responsible Cannabis Branding and put forward proposed guidelines, including that ads be allowed on TV, radio and websites where at least 70 per cent of the audience is expected to be over 18.

Provinces can introduce additional marketing rules. Quebec’s framework allows some ads in newspapers and magazines where 85 per cent of readers are of the legal age, as well as in displays inside cannabis stores.

“Offloading it to the provinces is not the answer,” said Lindsay Meredith, a Simon Fraser University marketing professor, who added it can lead to “spillover advertising,” where ads that comply with rules in one province are shown in another where they don’t.

Mark Zekulin, president of Canada’s largest licensed producer, Canopy Growth, said branding breeds accountability. If consumers are going to be more likely to remember their experience, companies will put more effort into ensuring it’s a good one.

“If everybody’s in the same white packaging, maybe they’ll remember what they bought, maybe they won’t,” he said.

Health Canada recently proposed regulations that would limit the use of colours and graphics on packages and require labels to have specific product information, mandatory health warnings and a standardized THC symbol.

They would also restrict brand elements, including requiring a standard font, size and colour relative to other information on the package. Public consultation on the rules ends Jan. 20.

Restrictions on fonts, graphics and colours open the door to brand prohibition, limiting the ability of companies to differentiate from each other and the black market, said Brendan Kennedy, president of Tilray, a leading licensed producer.

“What you’ll see is a race to the bottom, where all these products are essentially competing on price,” he said. “You’ll see less investment in high-quality products.”

Rebecca Jesseman of the Canadian Centre on Substance Abuse and Addiction said the regulations were positive overall but restrictions on brand elements should be clearer.

“It’s a tricky balance, because we don’t want to promote increased use and we don’t want (packaging) to be flashy, but we do certainly want to use it as a way to convey information effectively,” she said.

“I think we’re looking at something that’s informative, truthful and perhaps a little bit bland.”

Canada can learn from U.S. states that have legalized pot. Colorado allows print, radio, TV and Internet ads if there’s reliable evidence that 70 per cent of the audience is over 21, while Washington state requires ads to contain a number of warnings.

Colorado banned promotions that appeal to kids when it legalized cannabis, but over time the rules became more specific, including prohibiting edibles shaped like animals, said Lewis Koski, the state’s former marijuana enforcement director.

The federal government has given itself extra time to allow edibles, such as candies and cookies, in the marketplace, with regulations expected by July 2019. Koski, co-founder of consulting firm Freedman & Koski, praised the strategy.

“Health Canada has done a really, really good job,” he said. “They’ve been very thoughtful in their approach and they recognize that this is going to take some time and it’s going to evolve.”

The department said companies that violate the advertising or packaging rules, if passed, could face licence suspensions or revocations, fines of up to $1 million and potentially be referred to police.

Brown, the Kwantlen instructor, said he expects Health Canada to make examples of those who don’t comply early on. The department already sends a stern letter about once a year to all the licensed medical producers, he said.

“Inevitably, it’s a cycle where they all agree and they all comply, and then six or seven months later, they tend to drift away from that compliance,” he said. “We’ve yet to see any enforcement of that.”

— Follow @ellekane on Twitter.

Laura Kane, The Canadian Press

Health

Montrealer’s fight for insurance benefits highlights dangers of social media: lawyers

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MONTREAL — The case of a Montreal writer who said his insurance company refused to pay him disability benefits due in part to online postings is a reminder to people to watch what they put on the Internet, according to legal experts.

Literature professor Samuel Archibald published a letter in La Presse earlier this month detailing his struggles to get disability benefits after being diagnosed with severe depression last fall.

He wrote that while he was on leave from his job at Universite du Quebec a Montreal, the school’s group insurer opened an investigation because he had been able to take part in certain activities such as speaking with students, reading poems on the radio and making a 10-minute TV appearance.

They also looked at photos he had posted on social media that showed him jogging or playing with his children.

“They also used this new trick of peeling through the insured’s Facebook and Instagram pages in order to prove, in the event of a lawsuit, that he is not depressed,” he wrote on Feb. 12.

The article prompted a wave of denunciations from doctors, union leaders and citizens, with some sharing their own stories of being denied claims with the hashtag #avecsam.

It also elicited a response from Archibald’s insurance company, which defended its commitment to mental health and promised to review his file.

“Close to half of our group insurance claims are disability cases, and less than five per cent of mental health claims are declined,” Desjardins wrote in a statement.

“It’s important to note that each claim is evaluated on a case-by-case basis, while consulting with the insured, experts — including the attending physicians — and the employer.”

But the story is no surprise to legal experts, who say insurance companies are increasingly turning to social media to investigate claims.

David Share, a lawyer who specializes in insurance claims, says insurance companies have always conducted surveillance and been suspicious of certain kinds of disability claims.

He says that while firms have a responsibility to ensure claims are valid, social media can also offer “a cheaper, quicker way of trying to find grounds to deny a claim.”

As an example, he says insurance companies can argue that someone who spends a certain number of hours online is capable of working a desk job or taking calls.

“It’s easy to say ‘this person doesn’t look disabled,’ but that’s an overly simplistic way of looking at it,” he said.

Robert Currie, a lawyer and member of Dalhousie University’s law and technology institute, says insurance companies are too often allowed to be invasive and to jump to conclusions that aren’t supported by their evidence.

“You can’t judge anything meaningful about someone’s mental health based on their social media feeds,” said Currie.

“One thing we know is that social media feeds are extremely unreliable indicators of anything about a person, 95 per cent of the time.”

Both Share and Currie say that while the issue of social media monitoring raises privacy concerns, thus far there are few government regulations in place to stop it.

“The legal system is still trying to catch up with the Internet and the impact that it has, and it’s very difficult to prevent companies or investigators from being able to learn how to look things up online,” Share said.

Currie said that while people can have some legal recourse if they can show that companies breached strong privacy barriers, it’s far easier and less costly to assume that anything posted online can be found.

“A colleague has a sign on her office that reads: ‘Dance like nobody is watching; email as if it’s going to be read to a deposition some day,'” he said.

“I think people are far too casual about this.”

Morgan Lowrie, The Canadian Press

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Health

Highlights of Tuesday’s British Columbia budget

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VICTORIA — Highlights of British Columbia’s 2018-19 budget presented Tuesday:

— Effective Wednesday, a tax on foreign homebuyers increases by $5,000 to $20,000 and expands from Metro Vancouver to include homes in the Victoria-area, the Fraser Valley, the central Okanagan district in the province’s Interior, and the Nanaimo Regional District.

— A new speculation tax will be introduced in the fall aimed at foreign and domestic homeowners who don’t pay taxes in B.C., affecting properties in Metro Vancouver, the Victoria area, Fraser Valley, Nanaimo Regional District, Kelowna and West Kelowna.

— The property transfer tax on homes with a fair market value of more than $3 million increases to five per cent from three per cent.

— More than $6 billion will be spent over the next 10 years to create 114,000 housing units for families, seniors, students and women and children escaping domestic violence.

— Medical service plan premiums will be eliminated on Jan. 1, 2020, saving an individual up to $900 a year and families up to $1,800 annually.

— Starting Jan. 1, 2019, employers with payrolls of more than $500,000 will pay a new employer health tax, which is forecast to raise $1.9 billion in revenue in 2019-20.

— Beginning April 1, funding will be provided to licensed care providers to provide a $350 a month cut in the cost of a child care space.

— A new affordable child care benefit will start in September providing up to $1,250 a month per child.

— An additional $1 billion will be spent over the next three years to expand access to licensed child care, which the province says is part of its plan to create more than 22,000 new spaces.

— Fares will be frozen on BC Ferries’ three major routes and fares will be cut by 15 per cent on small routes.

— A forecast surplus of $219 million, with projections for surpluses to continue through the 2020-21 fiscal year.

— The government estimates it will spend $53.6 billion in the next fiscal year, up from an updated forecast of $51.8 billion for 2017-18.

— Economic growth for 2018 is forecast at 2.3 per cent, down from 3.4 per cent in 2017.

The Canadian Press

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