Sunday, 27 September 2020

Smoking and Income: Insights from the Canadian Community Health Survey

Earlier this summer, Statistics Canada released data files for the 2017-2018 Canadian Community Health Survey. This post is one of an occasional series which reviews this data for information on smoking patterns in Canada. Today's post is the first to look at the relationship between income and smoking behaviour. 

Inequities in income and smoking behaviour continue

In recent decades the relationship between economic disadvantage and smoking has been well established. A clear demonstration of this is in the smoking rates of each household income quintile (one-fifth of households). Those in the poorest households are 1.8 times as likely to smoke as those in the wealthiest: only 12% of Canadians in the highest group say they smoke cigarettes compared with 22% in the poorest.

The CCHS has reported on income quintiles since 2005. Although smoking rates have fallen in all household income groups over this period, the differences among them have not. In 2005, there was an 8 percentage point difference in smoking rates between lowest and highest income quintiles (27% vs 19%), while in 2017-2018, the gap was 9 percentage points (21% vs. 12%).  

Those in Canada's poorest one-fifth of families are 70% more likely to smoke than are those in Canada's one-fifth richest (RR=1.7).

This is is not because poorer Canadians are more likely to experiment with or become smokers. Canadians in all income levels are generally equally likely to have never smoked (this is less true for younger Canadians). Smokers in higher-income households, however, are more likely to quit than are those in poorer homes. For every 100 Canadians who have ever smoked more than 100 cigarettes, 70 in the highest income quintile will have quit, while only 57 in the lowest quintile will have done so.

Most smokers live in households with incomes over $60,000.

Although smoking rates are higher among poorer Canadians, it is not true that most smokers are poor. 

Statistics Canada provides information on household income brackets in increments of $20,000, with the highest category being "$80,000 or more". More than half (55%) of Canadian smokers live in families with household income over $60,000.

Families dealing with food insecurity are also affected by nicotine addiction. However, most smokers are not facing food insecurity. 

One signal that families are in economic distress is when they experience difficulties in obtaining enough food. The CCHS indicates when families have some difficulties accessing food ('marginal'), when they sometimes compromise quality or quantity of food consumed ('moderate') and when they have not had enough to eat regularly ('severe').

Slightly more than 1 in 10 Canadians (13%) live in families experiencing food insecurity, while more than 1 in 5 smokers (22%) do.

Canadians who are food secure smoke at half to one-third the rate of those who are facing moderate or severe food insecurity (14% vs 28% and 41%). Of the 2.5 million Canadians who live with moderate or severe food insecurity, one-third are  are smokers. 

Canadians living on social assistance are much more likely to smoke. However, the large majority of smokers are in the workforce.

In 2017-2018, the CCHS identified that the main source of income for three-quarters of survey participants (76%), were wages and earnings; that 15% relied on retirement benefits and that fewer than one in five (3%) were dependent on social assistance payments like employment insurance, welfare or workers compensation. Smoking rates in that last category were more than double those of the general population (38% vs 16%). Almost one in ten (8%) of smokers are in receipt of social assistance. 

About the CCHS

The Canadian Community Health Survey is an annual survey conducted by Statistics Canada. Every two years, the Public Use Micro File is made available with information based on surveys of the health behaviours and status of about 100,000 Canadians over the age of 12.

Links to data referred to in this post:

Wednesday, 16 September 2020

Vaping stores launch another constitutional challenge to provincial regulations

This week the CBC reported that earlier this month the Nova Scotia government has been served with a notice from local vaping merchants that they are asking that province's courts to strike down certain vaping regulations. The argument they will present to the court is that sections of the Tobacco Access Act violate the human rights of vapers.

This lawsuit was no surprise. Since late winter, GOFUNDME campaigns had been underway to raise money for this endeavour. The first campaign raised $38,000, and the second raised $107,000

Nor is this the first constitutional challenge to provincial restrictions on vaping products. 

In the spring of 2016, the Quebec government faced similar challenges from the Quebec Vaping Association (L'association Québécoise des vapoteries) and the Canadian Vaping Association. Those groups claimed that sections of the Quebec Tobacco Control Act, which had been adopted in November 2015, were in conflict with rights protected under the Quebec and Canadian Charters of Rights.

And it may not be the last! British Columbia's strict regulations, some of which come into force this week, have also been accused of being contrary to Canada's Charter. 

This post presents a brief overview of these legal claims, and of the court decisions to date.


The regulations

In 2020, Nova Scotia put in place three major changes to its vaping controls:

Cloud Factory
Dartmouth Location

The legal challenge

Notice of the legal challenge to these measures was filed on September 8, 2020 by Halifax lawyer Michael Scott of Patterson Law on behalf of the Cloud Factory Vape Shop and its part-owner Edward MacEachern. This store does not appear to be a large commercial undertaking, with a small number of outlets located in strip malls in Dartmouth and Fall River, Nova Scotia.  

This document advises the government that the court will be asked to:

  • strike down those sections of the Tobacco Access Act which ban the sale of flavoured e-cigaretets (s. 3(e), 3(ba) and 7)
  • strike down those sections of the Smoke-Free Places Act which ban using vaping products in retail stores (s. 5(a)(j)).
  • strike down those sections of the Revenue Act which impose a tax on vaping liquids (s. 46C-E)
The vape store owner claims that these restrictions run against his right, outlined in section. 7 of Canada's Charter of Rights and Freedoms, to "life, liberty and security of the person."  (The application did not claim that limits on nicotine concentration were unconstitutional.)

Although the details are sketchy (there are only 14 substantive paragraphs in the legal document), some of the arguments that will be made in support of this claim are outlined. These include the claim that bans on flavours  "unreasonably deprive adults of an important part of their smoking cessation method (flavoured vaping liquid)," that the ban on trying vaping products in stores does not protect youth but arbitrarily infringes the rights of adult vapers, and that the tax on vaping products infringes on rights "held by those who legitimately rely on vaping as part of their smoking cessation strategy." 

This will be a two-step legal process. In the first hearing (identified in the documents as being on November 30th), they will be asking for an immediate injunction striking down those sections of the law until their case can be fully heard. For the main trial, which they they could be ready for within a year, they have identified  4 categories of expert witness, and estimate that a 5-day hearing will be required.


The regulations

Quebec substantially amended its Tobacco Control Act in November 2015 to bring electronic cigarettes and vaping products under many of the same restrictions that were applied to combustible and other tobacco products. As exceptions to the rules for tobacco, these revisions allowed e-cigarettes to be displayed in specialty stores (but not sampled), and allowed e-cigarettes to be sold in flavours. 

The legal challenge

In March and April 2016, both the Association Québécoise des vapoteries  and the Canadian Vaping Association filed separate legal challenges to some of these new measures. These two cases were combined, and an 11-day hearing took place in December 2018. 

The main issues considered by the court were:

  • Does Quebec have a right to legislate in this area when the federal government has adopted different measures?
  • Do restrictions on advertising vaping products infringe the right to security of the person and right to expression provided for in the Canadian and Quebec Charter of Rights and Freedoms?
  • Do prohibitions on trying vaping products in specialty stores infringe the right to security of the person provided for in the Canadian and Quebec Charters?

In May 2019, Justice Dumais of the Quebec Superior Court issued a ruling (2019qccs1644) in which he decided that:
  • The federal Tobacco and Vaping Products Act does not preclude Quebec from passing its own  restrictions in vaping marketing, and the two laws are not incompatible with each other. 
  • Most aspects of the Quebec law do not infringe Charter rights to the security of the person.
  • The restriction on allowing people to try the product in stores did limit the rights of vapers to security of the person and there was no justification for this infringement. (Justice Dumais struck down  s. 2(1) and 2(12) of the Tobacco Control Act)
  • Those provisions of the Quebec law which prohibited advertising vaping products to smokers as a cessation device were also an infringement of expression rights under the Charters, and the infringement was not justified. (He struck down s. 24(4, 8, 9 and paragraph 3 of the Tobacco Control Act and s 6.4(2) of regulations under that act). 
The Quebec government filed an appeal of that ruling in June, 2019, claiming that the judge had made 'palpable and overriding errors'. Among these errors were the judge's view that vaping products were sold as cessation products for smokers only and that they were not also consumer goods targeting the broader population. The appeal also considers that the judge erred in the way he minimized the health risks associated with vaping.

A hearing date for this appeal has apparently not yet been scheduled. The Canadian Cancer Society has been granted intervenor status in the appeal.  

The Quebec government has not modified its law in response to the ruling, nor has it materially strengthened its restrictions on vaping marketing as other provinces have done. Last November, it commissioned a group of experts to provide advice on measures to address vaping, but their report (which was due in April) has not yet been made public. The 5-year review of the Quebec law is due to be submitted to the legislature in November 2020.

Will there be more?

Other provinces have recently introduced restrictions on vaping marketing. This week, for example, British Columbia's restrictions on nicotine levels, packaging and flavours also came into effect. Prince Edward Island has banned flavours in vaping products, effective March 1, 2021. 

These measures may be the subject of additional lawsuits --- or there may be some already filed that have not been made public. Governments are under no obligation to disclose whether their health regulations are being challenged.

Notably absent from the Nova Scotia and Quebec challenges are the multinational tobacco companies, which have historically spearheaded constitutional challenges to health regulations, and which generally sell through convenience stores, not specialty vape shops. 

Friday, 21 August 2020

Latest industry tobacco price increases underscore taxing problems

In mid-August, Imperial Tobacco again raised prices on its tobacco products. As shown in the price list circulated to retailers and pasted below, they are now charging from $2.50 to $4.50 more per carton in Ontario. Price increases in other provinces have not yet been located, but they are usually imposed at the same time.

This is the second major industry price increase this year -- in January prices went up pby $2.50 to $3.60 per carton for Imperial Tobacco brands. The other two major companies (Rothmans, Benson & Hedges and JTI-Macdonald) traditionally follow with identical increases within a week of Imperial's announcement. 

Variable price increases lift profits without reducing sales

The company is continuing a now-familiar pricing strategy: 

  • discourage governments from increasing taxes (by threatening contraband)
  • while taxes are constant, increase corporate profits with a general price increase
  • apply different price increases to different brands and in different provinces, so that price-sensitive smokers are less likely to be affected.
  • maintain discount pricing for certain retailers to ensure that a cheaper source of cigarettes is maintained.

COVID impacts the illegal market 

This year the mainstream tobacco companies have even more pricing room in Ontario, as the COVID-19 pandemic has reduced the number of smokers who go onto Indigenous Territories to purchase cigarettes that are not fully taxed. While there are yet no official reports on tobacco sales volumes this year, The Ontario Convenience Store Association has reported that cigarette sales are up across the province this summer, attributing the increase to reduced contraband sales.

Historic trends show industry revenues are climbing on decreasing sales

Cigarette sales (and smoking) continue on slow downward slope in Canada as they do elsewhere

But although the volume of cigarettes sold in Canada declined by 18% over the past 5 years. (from 29 billion to 23.4 billion) and the number of smokers decreased by 12% (from 5.3 million to 4.7 million), tobacco industry revenue increased by 24%. Health Canada has not yet released sales or revenue data for 2020.

Billions of cigarettes sold, federal taxes collected
and industry revenues 2009-2019.

Industry prices go up, but taxes stay stable.

While tobacco companies raise prices every 6 months the Ontario government has not adjusted its tobacco taxes in two and a half years. This year, only a few governments have done so. Both British Columbia and Nova Scotia raised tobacco taxes by $4 per carton, and PEI raised its taxes by $5.00. Manitoba announced a $1 per carton increase in its spring budget, but later deferred imposing it. The federal government imposed an inflation-related increase of $0.46 per carton in April. 

Some countries do not permit unauthorized tobacco price increases. 

Price regulation in other nations requires tobacco companies to seek authority from tax officials before raising their prices. Tobacco Journal International reported this week that Japan Tobacco had received permission this summer. Permission is also required in France for price adjustments to tobacco products.

Updated fact sheets

Imperial Tobacco Ontario Price Increase
August 2020

Thursday, 20 August 2020

Prince Edward Island bans flavoured e-cigarettes - effective March 1, 2021.

Prince Edward Island becomes the second Canadian province to formalize a comprehensive ban on flavoured vaping products. The ban will come into effect at the beginning of next March, after which only tobacco-flavoured e-cigarettes will be legal for sale.

The decision is reflected in the Orders in Council EC2020-489 signed on August 11, 2020:

1. Section 1.1 of the Tobacco and Electronic Smoking Device Sales and Access Act Regulations (EC538/15) is revoked and the following substituted: 1.1 For the purpose of section 3.1 of the Act, an agent added to tobacco or an electronic smoking device to produce an aroma or taste other than the aroma or taste of tobacco, including the aroma or taste of candy, chocolate, fruit, a spice, an herb, an alcoholic beverage, vanilla or menthol, is a prescribed flavouring agent. 

2. These regulations come into force on March 1, 2020.

Prince Edward Island has pioneered important tobacco control reforms over the past months. In March it implemented Canada's first "AGE 21" laws for vaping and tobacco and also moved vaping products out of general retailers. Since March these products can only be sold in specialty shops.

Only one other province (Nova Scotia) has banned flavourd e-cigarettes todate. Two others (British Columbia and Ontario) have restricted sales of most flavoured products to specialty shops. 

The federal government notified the World Trade Organization of PEI's intention last April, but has made no further disclosures for federal or other provincial measures.

Updated fact sheets:

Thursday, 30 July 2020

Confusion and non-compliance: One month into new vaping regulations.

Despite federal and provincial regulations, high-nicotine flavoured products with substandard warnings continue to be sold in convenience stores in Ontario. Whether they will be allowed to continue to do so is still not clear.

July 1: New rules come into force

At the beginning of July the rules for selling vaping products changed substantially in Canada's largest province. As of that date:

* Convenience stores and most other retailers in Ontario are banned from selling  vaping products with nicotine concentrations in excess of 20 mg/ml or with flavours other than tobacco. These products can only be legally sold in specialty vape shops.(Section 5 of Ontario Regulation 268/18).  

* All manufacturers and retailers are obliged to ensure products conformed with new federal Vaping Products Labelling and Packaging Regulations. A highly visible component of these regulations is a requirement for minimum size of warnings (around 40% of the principal package surface).

And yet ....

Thirty days after these regulations came into force, they appear to have had little effect in some of the convenience stores closest to Health Canada.

A visit to the three close branches of Canada's largest convenience chain (Circle K) found that non-conforming products were not only available for sale, they were prominently advertised. 

"Vaping bundle $12.99 Includes vaping device and pack of 2 pods. Strawberry / Cucumber / Orange / Mint / Mango / Berry /  Tobacco / Vanilla".

Each of the three large vaping manufacturers (British American Tobacco/Imperial Tobacco Canada; JUUL Labs; JTI-Macdonald) had non-conforming (illegal) products for sale.

* All three manufacturers were distributing products that contained more nicotine than is allowed for sale in Ontario convenience stores (almost 3 times the legal limit)

* All three manufacturers were distributing products that contained flavours that were not allowed for sale in Ontario convenience stores.

* Two of the manufacturers (JUUL, JTI) did not provide the legally-required warnings. Neither company appears to have changed its packaging, either in brick-and-mortar stores or on their retail web-sites. 

Vaping liquids purchased at Circle K
June 29, 2020, Ottawa, Canada 

All of the products contain illegal amounts of nicotine for sale in convenience stores
Two of the products do not have the required health warnings
All of the products have flavours that are not legal for sale in convenience stores

Uncertainties about enforcement  

In simpler times, regulations might have come into force on the date ordered by elected officials. Not so, it seems, with vaping regulations.

Duiring the spring, Ontario convenience store associations which had opposed the regulations were seeking a delay in having to follow them. Among the reasons given were COVID-related difficulties, such as "the new normal of operating during the pandemic and the ongoing need for distancing."

In early July, the convenience industry trade magazine Convenience Central reported that the lobbying efforts for a delay had been successful. Both federal and provincial enforcement officials were reported as having granted a grace period of six months. In the case of the Ontario government, ministry officials had agreed that "Providing more time to implement would allow owners and employees of affected businesses to practice physical distancing.”

Very soon afterwards, the provincial health ministry was somewhat walking back this assurance. As explained in a letter from the Ontario Ministry of Health to retailers, under the Smoke-Free Ontario Act (SFOA) the ministry does not have the authority to direct inspectors on whether or how to lay charges. "SFOA inspectors are provincial offences officers under the Provincial Offences Act and exercise independence in their approach to enforcing the SFOA, 2017."'

Meanwhile, Health Canada had sent its own letter to retailers on June 1. The regulations were coming into force as planned. There would be some gentleness in any enforcement actions, which would focus on guidance and information for the first six months before "progressive compliance" would start in the new year. Nonetheless, business operators were expected to follow the law. "Health Canada calls on the vaping product industry to take feasible actions to comply with existing and upcoming statutory and regulatory requirements that help protect young persons and nonusers of tobacco from exposure to and dependence on nicotine; raise public awareness of the health hazards of using vaping products; and protect the health and safety of Canadians."

So there we have it. Not the get-out-of-jail-free card the retailers wanted. But with no obvious policing, some at least have decided to defy the law.

Tuesday, 21 July 2020

Will British Columbia be the world's second jurisdiction to require plain packaging of e-cigarettes?

There may be a very important sleeper among the suite of measures to address youth vaping announced by the British Columbia government yesterday. One of the regulations introduced by minister of health Adrian Dix is a requirement that all vaping liquids be sold in plainish packages by mid-September. The regulation does not apply to packaging of the devices, but only on the packages that contain substances that produce a vapour.

Eliquids currently advertised on
Canadian Vape-shop websites

Short and sweet

This new measure is included in an Order in Council adopted by the B.C. cabinet earlier this week (July 20th OIC 426). Section 8 of the new E-Substances Regulation is clear and precise. In less than 200 words, it prohibits any text or imagery that is not specifically permitted or required under federal or provincial laws. (By comparison, the the federal plain packaging regulations for tobacco products take almost 9,000 words).

Packaging standards 

8 (1) Subject to any enactment of Canada, a retailer must not sell a restricted e-substance unless the product is packaged in a plain manner that does not contain any text or image other than as required or permitted under this section. 

(2) A retailer must not sell a restricted e-substance unless the package
(a) states the concentration of non-therapeutic nicotine in the restricted e-substance,
(b) states the total volume of restricted e-substance within the package or, if the package includes multiple cartridges or containers, the volume of restricted e-substance held or that may be held in each cartridge or container,
(c) states “WARNING: nicotine is highly addictive”, and (d) shows the warning symbol set out in the Schedule. 

(3) A retailer is permitted to sell a restricted e-substance in a package that states one or more of the following: 
(a) the name and contact information of the manufacturer;
(b) the brand name and product name;
(c) the type of product.

A different approach 

The brevity of this regulation results from the different approach taken in British Columbia than by other governments that have implemented plain packaging of tobacco products. Instead of stipulating how products must be packaged, B.C. has chosen to stipulate how they may not appear.

As a result, the impact will be different than the type of plain packaging that is now in force in Canada. There will be no standardized fonts, uniform colour or prescribed package sizes. Vaping liquids will not appear in the same olive-green colour that is now seen on packages littering Canadian streets.

Nonetheless, vaping manufacturers will no longer be able to use their packaging as mini-advertisements for nicotine use. 

Consider, for example, the current packaging for one of the leading products, BAT/Imperial Tobacco's vuse (show above). B.C.'s regulation appears to require the manufacturer to remove the patterned colours and logos, although it is not clear that they would be required to change  the background colour or to stop using distinctive (or attractive) fonts.

As companies lose the ability to put posters in retail stores, transit stations or on billboards, they can be expected to intensify their advertising in the media that remain open to them. This is exactly what happened when traditional promotions for cigarettes were curtailed 20 years ago. The package is one of the most obvious target for them to focus on. 

Learning from history? 

B.C. drafters may have drawn some inspiration from Canada's first federal law prohibiting promotions. The 1988 Tobacco Products Control Act  (s. 9) made it illegal for distributors to sell packages that had textual information other than brand names and trade-marks. The companies found loop-holes around this provision by trademarking a variety of advertising slogans and imagery. 

Sensibly, then, B.C. has not permitted the use of trademarks on packages. With the removal of trademarks on tobacco products now upheld by courts and trade tribunals across the world, they can do this with more confidence than federal regulators had in 1988. 

Canadian trademark 1011844
Tobacco companies trademarked
advertising slogans to circumvent federal
restrictions on promotional packaging

A legal challenge?

In developing this innovative approach, Health Minister Adrian Dix and his cabinet colleagues will have known that a fight with tobacco companies could be on the horizon. B.C. has already spent significant time and money fighting challenges from tobacco companies -- including their pioneering Tobacco Damages and Healthcare Costs Recovery Act and their Testing and Disclosure Regulations.

The regulations are scheduled to be implemented by mid-September. This would make B.C. the second jurisdiction worldwide to prevent text and images from being used as advertising on vaping packages.

Monday, 20 July 2020

British Columbia's new regulations will help protect children and adults from harmful nicotine marketing

Press release

Physicians for a Smoke-Free Canada today welcomed British Columbia's new regulations to protect young people from tobacco and vaping industry marketing.

"Last year Brritish Columbia was the first Canadian jurisdiction to develop a comprehensie strategy to address the youth vaping crisis," said executive Director Cynthia Callard. "The regulatory measures that were advanced today as part of that strategy will help protect young people and others from a harmful and costly addiction to nicotine."

The measures announced by B.C. Health Minister Adrian Dix today will restrict the sale of flavoured vaping products to specialty vape shops, will liimit the amount of nicotine in liquids to 20 mg, and will strengthen controls on promotion and packaging. The regulations complement and are embedded in a comprehensive cross-government approach developed by the province and involving youth and other government departments.

"British Columbia is intoducing regulatory controls which are considered urgent by public health researchers and community experts," said Ms. Callard. "Reducing the concentration of nicotine is expected to dampen the addictiveness to new users and reducing access to flavoured products is expected to reduce the impulse sales which entrap so many young people. The new provincial packaging and advertising restrictions strengthen the federal approach."

Ten years ago Canadian provinces and the federal government moved to remove flavours from tobacco products. One of the key lessons from this experience was the importance of prohibiting the sale of menthol and mint-flavoured tobacco products. British Columbia's decision to treat menthol equitably with other flavours is in keeping with best practices for flavour regulations.

The organization is encouraging governments to ban all vaping flavours other than tobacco flavours. "Flavours like strawberry and mango do more than trigger the impulse to use such products," explained Ms. Callard. "They also create a misleading impression of the harmfulness of this drug. It is harder to understand that something is dangerous when it tastes like fruit."

British Columbians of all ages will benefit from these regulations: Fewer young people will be encouraged to try a drug which historically traps one-third of its users in long-term addiction; Smokers who use e-cigarettes in their quit attempts are less likely to become long-term e-cigarette users; Former smokers are less likely to be re-recruited to nicotine use.

Current evidence supports governments adopting even strictter restrictions on the vaping market. "Today's announcement reflects the growing understanding that regulatory controls on the vaping market need to be reviewed. Research published since the vaping market was liberalized in 2018 increasingly cautions that there will be severe long term health consequences from using these products and that the current marketing of these products is driving up youth use while doing little to reduce conventional smoking by adults."

Earlier this month, federal Health Minister Patty Hajdu announced final regulations to restrict advertising for vaping products in Canada to places where young people do not have access, and indicated that she is also looking at reducing the amount of nicotine or flavours allowed in vaping products.

"It is reassuring that even in the midst of the COVID-19 crisis, many health ministers across Canada are giving priority to protecting young people from vaping nicotine. We urge them to work collectively to address the remaining weaknesses in public health controls."

- 30 -

Fact sheet on provincial restrictions on vaping product promotions and use. Updated July 2020.