The Difference Between Express vs. Implied Consent in Cannabis Email (Canada)

This blog post is intended for informational purposes only and does not constitute legal advice. While we aim to provide helpful guidance, regulations and rules are subject to change and vary by jurisdiction. You are responsible for ensuring your own compliance with all applicable laws and regulations and should consult with a legal professional for specific advice.

In Canada’s highly competitive cannabis retail market, reaching customers isn’t easy. 

Many traditional digital channels such as Facebook, Instagram, and Google Ads, restrict or outright prohibit cannabis-related advertising. That’s why email marketing has become one of the most valuable tools for cannabis retailers looking to build customer loyalty, share updates, and foster community. 

That said, before you can send your first campaign, there’s one crucial thing you need to get right: consent. Under Canada’s Anti-Spam Legislation (CASL), you need permission from customers before you can email them. For cannabis retailers, understanding the difference between express and implied consent isn’t just best practice; it’s a necessity. 

Let’s break down what each means, and how cannabis retailers can responsibly build their email lists. 

What is express consent?

Express consent means that a customer has clearly agreed to receive your emails. This typically happens when someone takes an action like:

• Signing up through a website form
• Checking a box during online checkout
• Scanning an in-store QR code and opting in

Express consent is the gold standard because it has no time limit. Meaning, you can keep emailing the subscriber until they opt out. For cannabis retailers, this is the safest and most reliable way to build your list. 

It also creates a higher quality audience. Since subscribers have expressly asked to hear from you, they’re more likely to open your emails, engage with your content, and remain loyal over time. Plus, express consent provides a stronger compliance safeguard, helping reduce the risk of complaints or penalties under CASL.

What is implied consent?

Implied consent happens when there is an existing business or non-business relationship. For example:

• A customer who bought from your store within the last two years
• Someone who made a general inquiry within the last six months

Implied consent is time-limited. Once that window closes, you need to either stop emailing or obtain express consent. For cannabis retailers, this creates a risk; if you rely too heavily on implied consent, you may lose the ability to market to customers unless you actively move them to express consent. 

Tip: always treat implied consent as temporary and use it as a springboard to ask for express consent. 

While implied consent can help you start conversations, it’s not a long-term strategy. Retailers who rely solely on it may find their lists shrinking as consent expires. The best approach is to use those early interactions (a purchase or an inquiry) as an opportunity to invite customers to formally subscribe. 

A simple follow-up email with a clear sign-up link or incentive can turn short-term implied consent into lasting express consent, ensuring your marketing efforts remain both compliant and effective. 

Why this matters for cannabis retailers

As you may have read, cannabis retail is one of the most tightly regulated industries in Canada. Beyond CASL, cannabis must also comply with the Cannabis Act, which prohibits things like:

• Marketing to youth
• Lifestyle or emotional appeals
• Testimonials and endorsements 
• Health or cosmetic claims

It’s important to remember that compliance responsibility falls on you as the retailer. It’s critical to have a clean, consent-based email list. 

Best practices for building a consent-based email list

1. Start with express consent. Use sign-up forms and in-store QR codes to build a lasting, compliant audience.
2. Don’t ignore implied consent. If a customer makes a purchase, send a timely follow-up email that encourages them to formally subscribe.
3. Educate, don’t overpromise. Keep your content factual and community-driven, share product availability, store updates, or educational information about cannabis. 
4. Automate compliance-friendly campaigns. Set up a welcome series to introduce new subscribers to your brand, or use anniversary emails to strengthen loyalty. 

Master consent, maximize results

Email marketing is one of the most powerful and reliable tools for cannabis retailers in Canada. By understanding the difference between express and implied consent, and prioritizing a strategy that encourages express consent, you’ll not only stay compliant with CASL, but also build stronger, longer-lasting customer relationships.