Canadian Lawyer InHouse

41 CANADIANLAWYERMAG.COM/INHOUSE MARCH/APRIL 2019 ing solution CannSell (CannSell.ca), the only approved and required training program for Ontario's private cannabis retailers. "In my experience, the industry has re- ally been working in tandem with Health Canada to understand and ensure compli- ance with the Cannabis Act, including with respect to restrictive and often ambiguous marketing regulations," she says. One example Fonar came across prohib- its "way of life" promotions, but brand pref- erence promotion is sometimes allowed. Health Canada mentions that "way of life" promotion is prohibited and could in- clude images of glamour, recreation, excite- ment, vitality, risk or daring. It would seem that images such as someone doing yoga or at a yacht party could be defi ned as a "way of life." Brand preference is more aligned with brand or service characteristics. But brand- ing could be considered promoting a "way of life", excitement or a feeling so there could be some overlap and confusion. Com- panies and their legal teams are working in tandem with Health Canada to help defi ne these promotions. "The challenge for legal teams is navi- gating that ambiguity, defi ning your com- pany's risk profi le and being confi dent that you can defend certain messages," she says. Starting with a decision tree can be valu- able, she says, beginning with the question of whether or not the message constitutes "promotion." The decision tree should also end with "is this a defendable position?" Promoting the cannabis sector on so- cial media is also posing interesting chal- lenges. Recent data shows that more than 22 million Canadians are social media us- ers — more than 60 per cent of the total population. "Social media is a sophisticated market- ing tool, but with this kind of penetration into the Canadian population, it's also a P r o f e s s i o n a l P r o f i l e The challenge for legal teams is navigating that ambiguity, defi ning your company's risk profi le and being confi dent that you can defend certain messages. MARIANA FONAR, Lift & Co. the creation of a brand-new industry. "This is a once-in-a-lifetime opportuni- ty to be part of the end of an almost centu- ry-long prohibition, and I'm both humbled and exhilarated to help shape this industry," she says. While Lift & Co. doesn't market prod- ucts, it is a go-to site and authority in the in- dustry, so it needs to be up on all of the latest developments issued by Health Canada. "We are unique in that we do not sell any cannabis products but hold a strong position in the Canadian industry because our plat- form bridges the information gaps between the cannabis industry's biggest stakeholders — licensed producers, retailers and consum- ers — created by restrictive regulations," says Fonar. "This is done through cannabis reviews on lift.co, complemented by our edu- cational and news content in our magazine and through our consumer and industry events, which are the largest in the country." Most recently, Lift has developed a re- tail training program in partnership with MADD Canada that is being used by the Crown and private retailers across the coun- try, and it has just announced its latest train- highly effective communication and educa- tion channel through which companies can specifi cally target adult Canadians. How- ever, the largest social media companies are based in the United States and, therefore, we are bound to those laws. This brings another layer of ambiguity for legal and marketing teams trying to navigate these channels," she says. There's also an interesting rise of the "social executive" — thought leaders in the cannabis space who are very active on so- cial media — which is an effective way for companies to communicate with audiences in real time, providing direct access to in- fl uential individuals in the sector. In trying to determine how to interpret the rules around advertising and market- ing, Fonar says it helps to understand what is permitted in adjacent industries that have similarly worded legislative frameworks. "Tobacco and alcohol are good examples and can offer directional guidance. We can also look at the historical interpretation of similar provisions in other legislation and their applications," she says. "As lawyers, we are trained in rules of statutory interpretation. Sometimes, you just have to go back to basics, keeping in mind that it's up to the government to en- sure they've drafted the [Cannabis] Act in accordance with its desired outcome." Fonar says the biggest challenge is try- ing to provide some certainty in an uncer- tain world, while properly evaluating risks and protecting the company's interests knowing that the legal environment could change rapidly. "I approach this by trying to provide busi- ness-minded legal advice, balancing the best interests of a high-growth company with the legislation that guides us," she says. "We try to be two steps ahead, but [we] know that things could change at any time, and we have to be fl exible and creative." IH SECOND SNAPSHOT T H E L A W Y E R The lawyer: Mariana Fonar Senior legal counsel and corporate secretary T H E C O M P A N Y Lift & Co. • Has held in-house roles at SkyPower Global and Deloitte Forensic. • Was a lawyer at Dale Lessman LLP in the corporate/commercial law group for two years before going in-house. • JD/MBA from Richard Ivey School of Business at University of Western Law. PHOTO: LIFT & CO.

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