Cannabis and Court Rulings 1

A federal judge has ordered Health Canada to review its Organigram case over what constitutes a cannabis edible.

Earlier this year, Health Canada sent cease and desist letters to LPs. They accused the licensed producers of selling cannabis edibles masquerading as extracts.

Organigram was one of these LPs. Health Canada said their lozenges, known as Jolts, were really edibles. This decision put the product under a different regulatory umbrella, namely, a cap of 10mg of THC per unit.

So Organigram contacted their lawyers. Justice Cecily Strickland ruled that Health Canada was wrong. The federal health bureaucracy will have to review its initial decision and reassess.

Of course, Health Canada can determine that its initial decision to classify lozenges as edibles was correct. And then we’re back at square one.

But right now, it’s Organigram 1, Health Canada 0.

Partial Victory for Organigram

Health Canada Organigram

It’s music to our ears to hear a federal court order Health Canada around. But, as mentioned, Health Canada could make the same decision regarding the Organigram case.

The federal court also didn’t address Organigram’s main complaint: Health Canada made this decision after approving the lozenges as extracts. Jolts have been on the market since August 2021. It wasn’t until early 2023 that Health Canada decided to flex their bureaucratic muscles. 

Justice Strickland did not rule on the “reasonableness” of Health Canada’s compliance letter. She said there was a “breach of procedural fairness” with its initial decision. Ergo, return to the drawing board and see if you screwed up.

Only in government can people investigate themselves for any potential wrongdoing.

Organigram wanted the court to annul Health Canada’s extract-edible decision. So, this is only a partial victory. 

Justice Strickland ruled that Health Canada didn’t give Organigram ample time (or even an opportunity) to respond to their claims. The federal bureaucracy objected to the lozenges’ size and shape. They claimed it was too big to put under the tongue. 

In her ruling, Strickland said: “I found no evidence in the record before me to support its inference that the size and shape of the Jolts may cause consumers to not follow the instructions for use.”

Why this Health Canada-Organigram Case is Important

Health Canada Organigram

This Health Canada—Organigram case is important for several reasons. An already struggling cannabis industry shouldn’t have to wage these battles over the petty attitudes of Canada’s regulatory bureaucrats.

A cannabis product labelled an “extract” can have 100 times more THC than an edible. 

Bureaucrats shouldn’t be handing out cease and desist letters at the 11th hour. That’s not how healthy Western democracies work. That’s how banana republics work. 

Nobody wants to invest in a country where bureaucrats interpret “public health and safety” as interfering with consensual capitalist acts between adults.

Organigram wasn’t harming their customers by selling Jolts. And customers weren’t being duped or harmed by voluntarily buying the product.

Health Canada is chasing a boogeyman. Or perhaps, this entire ordeal was plain old bureaucratic inefficiency.

In her decision, Justice Strickland wrote:

[T]he process by which Health Canada assesses the classification of products, as submitted by producers, as either edible cannabis or cannabis extract, is relatively new and appears to have been in transition during the time leading up to the making of the decision… in an effort to avoid future challenges based on procedural fairness, Health Canada should consider clearly identifying the policy(s) and procedures upon which it will rely in making determinations of non-compliance based on the classification of cannabis products and inform concerned parties concerned accordingly.

In other words, don’t be a black box of information. Communicate with the companies you’re apparently regulating. Of course, we prefer voluntarily-funded accreditation agencies.