In October of 2018, Canada joined a very niche club, becoming only the second country in the world (after Uruguay) to legalize recreational cannabis. However, if you thought that meant the streets would be paved in green leaves up north, you would be wrong.
Canada is divided into provinces that, like the states in the U.S., have their own laws and regulations separate from federal rulings. That means that although the Cannabis Act applies to all of Canada, depending on where you live your ability to purchase cannabis may differ. As the law rolled out some infrastructure problems made the transition a little bumpy, with supply chain issues and confusing regulations. When it came to accessing CBD products, in particular, consumers were really confused.
WHAT IS CBD?
If you looked at a cannabis flower or leaf underneath a microscope you would see hundreds of tiny little hairs sprouting up called trichomes. Compounds of cannabis, called cannabinoids are produced and stored on the plant’s trichomes. There are over 100 different cannabinoids including THC and CBD. THC, or Tetrahydrocannabinol, is the compound in psychoactive cannabis (“marijuana”) that makes people feel “high.”
CBD, in contrast, has no psychoactive effect and instead has been embraced for a range of medical and therapeutic uses. Used in the drug Epidiolex, it is prescribed and sold at great cost to treat epilepsy. As interest has grown a huge range of products have come onto the market exploding in popularity, crossing genres from wellness products to skincare, to beverages.
IS CBD LEGAL?
This is where things get tricky. CBD has had a complicated journey towards legislation in the U.S. with different states determining it to be either legal or illegal, with the final say often coming down to how it was produced. CBD derived from hemp has generally been considered permissible while CBD from marijuana has not.
With the passing of the Farm Bill, it was thought that all hemp derived CBD would be totally legal but a press release from the FDA threw more confusion into the mix with a warning that CBD cannot be added to foods, that health claims would be rigorously tested, and a suggestion that in the future they would “consider whether there are circumstances in which certain cannabis-derived compounds might be permitted in a food or dietary supplement.”
One of the sticking points seems to be that although there are studies showing CBD can alleviate feelings of social anxiety, and that it reduces inflammation and works as a pain reliever, medical claims made by CBD producers and manufacturers are untested and not regulated federally.
AN OVERVIEW OF LEGAL CANNABIS IN CANADA
The new official rules in Canada allow members of the public to possess and share up to 30 grams of legally acquired cannabis and grow up to 4 plants per residence for personal use. That provision that the cannabis must be “legally acquired” states that it must come from an approved provincial or territorial retailer. It’s also of note that in the official announcement mentions of CBD products specifically are missing.
The Cannabis Act states that “Other products, such as edible products and concentrates, will be legal for sale approximately one year after the Cannabis Act has come into force and federal regulations for their production have been developed and brought into force.”
It seems that the Canadian government is going with a soft launch focusing on psychoactive cannabis containing THC with plans to address CBD and other cannabis products at a later date.
Coupled with this slow rollout is the fact that government officials and lawmakers have not made a distinction between products containing THC and CBD, as Trina Fraser, partner at Brazeau Seller Law, in Ottawa, Ontario explained:
“CBD, in and of itself, falls within the definition of “cannabis” in the federal Cannabis Act. As such, it is regulated just as all other cannabis products containing THC. Hemp farmers can grow hemp for the purpose of CBD extraction, but the plant must be sold to a federally licensed processor to conduct the CBD extraction, and then the CBD is subject to the same rules as all cannabis extracts.”
CANADIAN CANNABIS LAW CAUSES CONFUSION OVER CBD
Fraser explained that there was a proposal to permit natural health products containing CBD, but it seems the process was stalled and never completed.
As CBD products do not have the same effect as THC consumers believe falsely that they are always legal. “There seems to be a pervasive misunderstanding as to the legal status of CBD,” said Fraser.
“Mary” from Ottawa [name changed to protect from possible prosecution] is one such confused consumer. She uses CBD to control her anxiety and told us that life without it is immeasurably worse. “I really need my CBD products, they help to keep me relaxed and to deal with symptoms of PTSD, but I really don’t understand whether or not I am allowed to legally purchase them. I order offline from a US company and they mail it to me. I have always received it with no problem, but I find I am anxious until I get my package,” she said.
WHAT ARE LICENSED PRODUCERS?
Steven Looi, Director of Origination at White Sheep Corp and an industry expert from Toronto said that “CBD is treated the exact same way that THC is treated, in fact, all cannabinoids receive the same treatment in Canada. CBD is illegal unless it comes from a licensed producer.”
Health Canada claims that to become a licensed producer in Canada applicants must go through a screening process that is the toughest in the world for cannabis producers.
Consumers cannot legally purchase cannabis from any other producer.
“I really need my CBD products, they help to keep me relaxed and to deal with symptoms of PTSD, but I really don’t understand whether or not I am allowed to legally purchase them.” — “Mary,” a Canadian CBD consumer
According to Statistics Canada there are over 100 licensed producers registered in Canada, although there may not be that number currently producing and selling their products.
Only those people with a prescription for medical marijuana can purchase CBD and only through companies authorized by the MMPR — the Marijuana for Medical Purposes Regulations. Of those 100 licensed Canadian producers, only 23 have been registered under the MMPR and are able to sell directly to the public. Therefore legally purchasing CBD in Canada, even if you have a prescription, can be very difficult.
CHANGE IS COMING FOR CANADIAN CBD CONSUMERS
Changes are coming soon though in conjunction with ongoing public consultation, slated to be completed by the end of 2019. “All sorts of new product types will enter the legal marketplace and permit the legal sale of many products that are currently only available illegally,” said Fraser.
However, although it may seem that all of this uncertainty will be ironed out by years end, purchasing CBD in Canada will still require effort, despite the new laws. Legal CBD products will continue to only be available through authorized retailers and products will carry security features on the packaging like cigarettes and alcohol. There will also be strict limitations in place in terms of the health claims producers can make. Health Canada follows the legislative lead and also makes no distinction between CBD from hemp or marijuana.
Looi pointed out that “For folks going the legal route for a CBD, legalization will give them greater access, and more products. For folks that always sourced their meds in the black market, not a whole lot has changed.”
Once edibles and other cannabis products are legalized Looi said Canadians will have access to some of the same types of products that are currently flooding the American market.
“Canadians will have better access to a proliferation of CBD products. Marketing, storytelling and promotion will encourage many new consumers to purchase products featuring CBD,” he said.
As with any emerging industry, there are certain to be teething problems both in Canada and the United States. Unfortunately for CBD users in Canada, the much longed for legalization has not automatically made CBD accessible for all.