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Canada’s cannabis laws struggle to balance regulation and public health

The sniff test: Kyle Bell, of Numo Cannabis, helps a customer decide on his purchase of legal marijuana in Edmonton, Alberta. Canada became the largest country with a legal national marijuana marketplace in 2018 (Photograph by Jason Franson/The Canadian Press/AP)

It’s finally begun.

The federal Cannabis Act stipulates that the workings of the legislation be reviewed three years after coming into effect. That triggering date was the fall of 2021. The inquiry is one year late.

Nevertheless, it promises to be a wide-ranging look at the Act and how it has been implemented. It will be conducted by five individuals: Morris Rosenberg, a retired but formerly highly placed federal civil servant, and four others, yet to be named. As required by the review, the panel is to report within 18 months.

Many issues will be addressed. But expect battles. There will be a face-off between public-health advocates and industry representatives on a number of fronts.

The industry is crying the blues in terms of excessive regulation and taxes that it claims make its role in a legal market unprofitable. But public-health advocates assert that many aspects the industry is complaining about are necessary to combat harmful consumption. These are not positions that can be easily reconciled.

Let’s take a look at some specifics of these two antagonistic stances.

First, it was Mr Smitherman goes to Ottawa. George Smitherman, the former Ontario Minister of Health and now CEO of the Cannabis Council of Canada, was in the capital this month to mark the fourth anniversary of legalisation. But there was no cake or party favours. Instead, it was an effort to get relief for the cannabis industry, particularly producers and processors. Dan Sutton, the CEO of B.C.’s Tantalus labs allied with Smitherman, asserted: “This is an industry that cannot pay its own bills and cannot make ends meet.”

Their complaints include taxes that don’t respond to the realities of the actual price of cannabis and an unregulated illegal market that is not burdened by regulations and taxes. Others have charged that the restrictions on marketing of cannabis curtail sales that are necessary to generate revenue and for competition with the demi-monde.

Second, public-health advocates see a very different situation. They are quick to remind us that a main goal of the Cannabis Act was a public-health approach that would limit harmful consumption. Protection of children from the negative effects of this drug was to be front and centre of that focus.

But are children being adequately protected? Consider cannabis poisonings. Recently, results of two large studies found a nine times increase in emergency department visits and a six-fold increase in hospitalisation because of cannabis poisoning in children under 10. At the start of legalisation, the federal government did not permit the sale of edibles. After a year delay, edibles (candies, chocolate) were permitted. Most of the increase in cannabis poisonings in youngsters occurred after edible products became available. Moreover, the levels of poisonings were much lower in Quebec – where sale of edibles is essentially banned. Similar studies are raising the alarm about cannabis poisoning of children in the United States.

The authors of the Canadian studies support legalisation. They recognise all the harms that criminalisation created. What they do insist upon is that the “… impacts of legalisation on the health of Canadians must take precedence over the financial concerns of the cannabis industry [and] …growing calls to roll back… regulations.” Public-health advocates can also point to examples where those with acumen in the cannabis industry are doing quite well.

Concerns about public health should be at the forefront of the review of the legislation. Criminalisation was wrong; made even worse by being tainted with racism, particularly in terms of arrests of Black and Indigenous peoples. Now that legalisation is here, reducing harmful use of cannabis, particularly among children, must be given priority.

At the same time, if we want to confront the illicit market, we must have a viable legal one. The industry wants a crackdown on the underworld. That should be done to the extent that is possible. But legal producers and processors will have a harder time with other demands that fly in the face of harm reduction. Achieving some sort of balance will be a huge task for the panel reviewing the Cannabis Act. One complication is that excise taxes, a focus of the industry’s anger, are not within the mandate of the panel.

Meanwhile, Smitherman and his allies would do well to submit cogent evidence for any modifications to the Act or other legislation that they wish. Trips by him and his confederates to Ottawa before the panel gets even started to meet and greet MPs and officials should be seen for what it is: naked lobbying.

W.A. Bogart is a Distinguished Professor of Law (retired), University of Windsor, and author of “Off the Street: Legalizing Drugs and Regulating Obesity? Government, Society, and Questions of Health”.

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Published December 01, 2022 at 7:54 am (Updated December 01, 2022 at 7:54 am)

Canada’s cannabis laws struggle to balance regulation and public health

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