Jamie Shaw: Caveat emptor—consumer rights and cannabis legalization

A cannabis policy consultant weighs in on what consumers can expect in a legal landscape

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      By Jamie Shaw

      In ancient Mesopotamia, the first Babylonian king, Hammurabi, created a code of laws—one of the first instances in history to include rules ensuring consumer protection. For example, if an unsafe structure collapsed, it was the builder who was held accountable for the damage.

      Unfortunately for consumers, this ancient concept was soon replaced by the Roman ideal of “caveat emptor” or “let the buyer beware”, which placed the responsibility on consumers to protect themselves. It would become the main doctrine dictating consumer rights, or lack thereof, going forward.

      It wasn't until the rapid rise of consumerism following the Second World War that North America saw a revolution in thinking around consumer issues. As a result, in 1962, U.S. president John F. Kennedy told Congress a new movement was needed. This resulted in the first Consumer Protection Act of the modern era.

      The four basic principles governing consumer law would be founded, and are still relied upon around the world: the right to safety, the right to information, the right to choose, and the right to be heard.

      As the world modernized, the debate around consumer rights became an ever-expanding area in both business and personal litigation and regulation, and by the 1980s, four more basic principles would be added. These principles were: the right to basic needs, the right to redress, the right to consumer education, and the right to a healthy environment.

      One would think that rules regarding any newly legal product in the industrialized world would be based more or less around these fundamental principles, yet that doesn’t seem to be the case when it comes to cannabis legalization in Canada.

      Make no mistake, the consumers most left behind as a result of this lapse are the patients. From limited access to strain selection as producers meet export deals and stockpile cannabis for the province’s rollout of legal sales, to industry organizations rushing to drop "medical" from their name, most patient organizations have been effectively silenced.

      Not only is medical cannabis still taxed, there will be an additional excise tax added now that Bill C-45, the Cannabis Act, has passed. For now, the Liberal government’s promise to revisit the medical program in five years has been enough to shelf their plight, leaving these patients effectively in the dark for the next half-decade.

      Recreational consumers shouldn’t expect much better treatment, either. Perhaps it is the rampant equation of cannabis with alcohol and tobacco that has caused this oversight. Yes, cannabis can be intoxicating like alcohol, and, yes, it can be smoked like cigarettes, but this is where the similarities end. Further, with alcohol and tobacco we have instilled the idea that by choosing consumption of these substances you somehow waive your consumer rights.

      While governments struggle to reduce smoking rates, going so far to pay for nicotine patches, they have failed to apply the basic principles of consumer rights to this product. At no point have they even suggested companies stop adding known toxic chemicals to tobacco.

      This may seem very far from where we are on cannabis, but is it really? Despite Health Canada’s "strictly regulated" approach—compounded with the litany of shots taken at the "illicit" market—when licensed producers were caught selling cannabis with traces of banned pesticide on it, they didn’t even receive a slap on the wrist. And that’s when the cannabis was only going to medical patients.

      The idea that we are approaching this from a public health perspective has become increasingly more laughable as the regulation debate unfolds. Our governments are so afraid of promoting cannabis that instead we will prevent sales and production staff from actually sharing knowledge that could reduce or entirely prevent some risks. In truth, what we are doing is setting up some consumers for an incredibly bad experience.

      Calling something "recreational" does not change its effects, and it certainly does not change the nature of substance. If I have an allergy to peanuts, you can call them “recreational peanuts” all you want. They still have the potential to kill me and we aren’t even talking about something as deadly as peanuts.

      While cannabis is a safer substance (simply because there have been actual deaths associated with peanuts), if I have anxiety or am prone to paranoia, the likelihood that I will have an adverse reaction to a sativa is much higher. If I have a family history of schizophrenia, again, a sativa is more likely to set it off. The fact that “sativa” and “indica” aren’t even actually correct doesn’t even matter, it still gives consumers a better guideline currently than simply listing two of the cannabinoids (tetrahydrocannabinol and cannabidiol)—which is what current labeling guidelines require.

      Understanding that, we currently don’t have the research to understand how all the cannabinoids and terpenes work together—we haven’t even named them all yet. It’s looking like when this research does finally catch up, it likely still won’t be made available to the general public on things like packaging and advertising materials.

      It seems we will equate cannabis with a medicine when it comes to limiting access and promotion, but we are quick to tax it while refusing to call it a medicine. We will equate cannabis with alcohol and tobacco when it comes to creating barriers to access, but we will also refuse to allow the equal ease of access. We will allow legal sales of cannabis, but we will ignore the consumers right to safety, their right to information, their right to choose, and their right to education. In this sense, we really have returned to a “buyer beware” approach to cannabis consumption in the near-legal landscape—little to no information with high risk.

      And in the words of civil rights activist Cesar Chavez: “Who gets the risks? The risks are given to the consumer...”