Opinion: Lawyer Chad Finkelstein weighs in on the short life of Trailer Park Buds
The Canadian cannabis industry has forged a number of partnerships with celebrities, including Snoop Dogg and LBS (formerly Leafs By Snoop); Seth Rogen and Houseplant; and Trailer Park Boys and Trailer Park Buds. But Trailer Park Buds didn’t last long. Organigram, the licensed producer behind the brand, recently announced that it would cease development of products bearing that trademark following a review with Health Canada — leading many in the industry to wonder what line that particular brand crossed.
The regulations governing cannabis branding and marketing can be a minefield, and in these early stags of legalization, many are still scratching their heads. But Canada’s Cannabis Act outlines a number of prohibitions surrounding the promotion of cannabis brands, none of which mention “celebrities” specifically. But there are a number of cannabis promotion restrictions that could certainly apply to celebrities lending their name and image to a cannabis brand, including:
- Appealing to youth: Cannabis brands cannot be promoted in a way that there are reasonable grounds to believe could be appealing to people under 18 years of age.
- Endorsements: Cannabis brands cannot be promoted by means of testimonials or endorsements, however displayed or communicated.
- Depiction of a person: Cannabis brands cannot be promoted by means of the depiction of a person, character or animal, whether real or fictional.
- Lifestyle branding: Cannabis brands cannot be promoted in a manner that associates it with a positive emotion about, or image of, a way of life, including glamour, recreation or excitement.
Certainly an association between a cannabis product and a celebrity can check some or all of these boxes.
But before drawing too many conclusions, we ought to go back to first principles and consider whether the activity in question qualifies as a promotion at all. The Act defines “promote” to mean making a representation about a product or service that is likely to “influence and shape attitudes, beliefs and behaviours” about that product or service.
It is unlikely that every single incorporation of a celebrity into a cannabis product’s business or branding rises to that level. The mere fact of a mention or invocation of a celebrity in the same breath, or even press release, as a cannabis brand does not necessarily result in the influencing or shaping of attitudes, beliefs and behaviours.
Certain public figures had already founded cannabis enterprises before a Canadian producer identified a partnership. The collaboration between Supreme Cannabis and Wiz Khalifa, with KKE (which stands for Khalifa Kush Enterprises) is a great example. Mr. Khalifa had already established Khalifa Kush in the United States, and as an entrepreneur, had strategic consulting and brand licensing services to combine with Supreme’s growing presence in Canada.
One might say that this is a hollow legal defence, designed to facilitate indirectly what cannot be done directly. But why? If Wiz Khalifa was not a known celebrity, would any industry observer bat an eye at an American cannabis executive partnering with a Canadian cannabis producer? Again, the mere fact of a celebrity association is not tantamount to a promotion under the Act.
By extension, the collaboration between a cannabis executive who happens to be a public figure and a Canadian cannabis company does not automatically amount to an endorsement of a cannabis brand by that public figure. But the devil is in the details. Care must be taken to ensure that public statements made by that celebrity (including interviews or social media posts) are not endorsements or testimonials about a cannabis product or service. A business executive referring to his or her company’s latest ventures is not an endorsement. Getting paid to communicate the positive attributes of a product is, and that would be offside.
Is the incorporation of a celebrity into a cannabis company’s business plans a prohibited “depiction of a person”? Again, details matter. A digital ad for a product featuring a celebrity’s face would likely be an offside promotion. A press release or media statement about a business collaboration is no more a depiction of a person than would be the case for an executive who isn’t a celebrity, if it’s even a “promotion” at all.
However, if brand elements of the celebrity (or a character associated with that celebrity) are incorporated into the cannabis product or service, this could amount to a restricted promotional activity. Given the overlapping words and font between the “Trailer Park Boys” and “Trailer Park Buds” branding, the risk was high that the products would be considered a depiction of a character, or even associated with glamour or other lifestyle connections.
I did not provide advice to any of the partnerships I have referenced in this column, but in my opinion, it was prudent to brand LBS and KKE products without referring to Snoop Dogg or Wiz Khalifa, respectively. It was even better to create further distance with names like Houseplant (Seth Rogen) or Uncle Bud (Jane Fonda). Not to pile on one specific example, but so closely cross-branding Trailer Park Boys and Trailer Park Buds also runs the theoretical risk that all promotions of the Trailer Park Boys entertainment properties are considered promotions of Trailer Park Buds!
And, of course, no discussion about partnering celebrities with cannabis brands is complete without carefully considering one of the overarching objects of cannabis legalization: the protection of youth. As already mentioned, not every venture involving a celebrity amounts to a “promotion.” Further, not every celebrity is necessarily appealing to people under 18 years of age. This will need to be considered on a case-by-case basis depending on the celebrity at issue and how his or her involvement will be communicated. To use an utterly absurd and extreme hypothetical, it would be challenging to incorporate Taylor Swift into a cannabis brand, but perhaps less complicated for, say, Morgan Freeman!
Of course, as Health Canada’s interpretation of the guidelines and enforcement measures evolve, more clarity will come. But the mere fact of a combination of celebrity and cannabis brand is not necessarily prohibited by Canadian cannabis laws.
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