On March 8, 2019, Health Canada sent a letter to cannabis license holders regarding “promotional activities, including some online content, that may not be compliant with the promotion prohibitions prescribed in the [Cannabis] act.”
Health Canada noted specifically that licence holders were violating the promotional restriction laws by making promotional content available online on websites and social media sites “without any steps being taken to ensure that the promotion cannot be accessed by a young person, and in other cases, the steps taken (e.g. simple self-attestation of age) may be easily circumvented by youth.”
The penalties for non-compliance with the Act can be severe and range from warning letters to license suspension and revocations to administrative monetary penalties of up to $1,000,000 or the maximum amount set by regulations. Non-compliance is also an offence that is subject to a maximum penalty of up to $5,000,000 or imprisonment for a term of up to 3 years, or both.
This leads to broader questions – what defines an age gate? Why are they required? What are a company’s age gate installation options? This article serves as a guide to explain age gates for cannabis companies, which includes retailers, producers, and anyone who displays cannabis on their website.
Why does the cannabis industry require age gates?
To be clear, age verification systems are required on all websites that sell/promote age-restricted goods. In the U.S. you must be 21 or older, while in Canada, you must be 18/19 years or older (depending on the province) to purchase or consume cannabis products recreationally – pretty plain & simple. Like a digital bouncer, the age gate is there to ensure that no one entering the website is below the legal age, although you don’t have to provide an ID to prove it.
What makes a cannabis website age gate compliant?
According to sources, Health Canada only considers simple ‘one-click’ yes/no age gates to be non-compliant, leaving the door open to the kind of age gates that requires users to input an actual birth date.
ADCANN consulted with cannabis legal Trailblazer Chad Finkelstein on what’s required by Canadian law for cannabis website age gates:
”The federal Cannabis Act includes a suite of restrictions on promoting cannabis products and services. A promotion is defined as a representation about a thing or service that is “likely to influence and shape attitudes, beliefs and behaviours”. Of course, not every single online presence rises to that level. But for those which do, “informational promotion” and “brand-preference promotion” are permitted provided the promotion is communicated “by means of a telecommunication, where the person responsible for the content of the promotion has taken reasonable steps to ensure that the promotion cannot be accessed by a young person”. This is a long way of describing what has come to be known as ‘age-gating’.
To that end, in order to satisfy the permissions to engage in brand-preference promotion and informational promotion online, any website ought to be sufficiently ‘age-gated’ with age-verification measures in order to ensure that the site cannot be accessed by a young person. Age-verification measures no less stringent than those employed by online cannabis retail stores operated by provincial governments are recommended, however there is no prescribed legal standard for what types of number of age-verification steps are required.
Further, such advertisements must be designed with the parameters of “informational promotion” and the more permissive “brand-preference promotion”. The Cannabis Act defines “brand-preference promotion” as the promotion of cannabis, a cannabis accessory or a service related to cannabis by means of its brand characteristics, and “informational promotion” as a promotion by which factual information is provided to the consumer about cannabis, a cannabis accessory or a service related to cannabis, or each of their respective characteristics, availability or price. The former has been treated with a wide latitude of interpretation by the cannabis industry to date. No advertisements or prominence with respect to a particular cannabis brand element can exceed these thresholds. This may require an analysis of each proposed website and piece of online content on a case-by-case basis to be satisfied of compliance.
Chad Finkelstein, Partner at Dale & Lessmann LLP
What do cannabis age gates look like?
They can be a simple “Are you 21+ yes or no” pop up or an “enter your birthdate” form. These two ways of age verification can be used with any website style, as demonstrated by the age gates displayed on the majority of cannabis websites.
If you are delivering an age-restricted product, you may want to require proof of identity upon receiving the package OR run their alleged birthdate against a third-party provider to see if it checks out against a third party database. These aforementioned suggestions are commonplace in medical cannabis industries, but less so in recreational cannabis.
How do cannabis age gate requirements vary?
Well – they really don’t! Age Gates are required all across North America on sites promoting cannabis or cannabis-related goods/services. Upon receiving licensure, you will be made aware of this fact. The efficacy of age gates is up for debate, but being compliant is not.
One aspect of cannabis age gates that not all companies use is the ability to check a box that makes the user agree that they’re not using a shared computer and remember them (their age) for 30-days using the website’s cookies.
What platform options are available?
The following is a non-exhaustive list of the most popular age verification software that can be applied both online (as discussed earlier) or in person at a kiosk.
What are some cannabis age gate design best practices?
This question is akin to how do you like your coffee? There’s no right answer, and all that matters is your answer. That being said, when we exclude boring and ugly examples, age gate designs tend to fall into two categories:
1. Clean designs – less is more.
Joia Cannabis’s age gate design.
Different cannabis brands have different aesthetics, just as different cannabis users belong to different demographics. Generally, however, cannabis brands either go for a clean, professional, minimal design, or they opt out for a more ambitious counterculture-like aesthetic. For those aiming to end up in the prior category, Joia Cannabis illustrates how minimal design can go a long way. Bold Growth Cannabis takes this minimalist approach even further and opts out of including a background image completely.
2. Ambitious designs – loud & proud.
MTL Cannabis’s age gate design.
For companies more akin to the celebratory nature of cannabis culture (e.g., festivals, stoner movies, counterculture icons, etc.), you may want a design that looks more like weed and less like the latest technology. The inclusion of smoking in the design is a conscious choice that communicates “we enjoy our products, so you will too.” Homegrown Oregon Cannabis also captures this aesthetic quite well.
Do your best to age gate
The obvious truth is that age gates aren’t foolproof. However, one could argue that age gates serve a more symbolic, communicative purpose. It tells the world “this product is for adults. We are compliant, and I hope you will be too.”
Which cannabis brands have the best website age gates?
VOTE IN THE 2020 ADCANN AWARDSLast Updated on April 9, 2021 by ADCANN
