Wednesday, 27 February 2019

Is Health Canada really going to let Imperial Tobacco off the hook for its illegal vaping ads?

Before Bill S-5 was passed, a number of health groups (including our own) warned parliamentarians that this law would pave the way for tobacco companies to return to television advertising. Regretfully, we were right.

Hill Times Ad, May 2017

Between September and November  last year, Imperial Tobacco broadcast ads for its Vype Epen 3 on Canadian television stations. Although TV ads were permitted by the law, in our view this one was not. In October, we filed a complaint with Health Canada, pointing out where the advertisement contravened the sections of the Tobacco and Vaping Products Act which prohibited lifestyle advertising (s. 30.2).

And there it seemed to sit. We received no written response from the department, and it was not clear whether or when they had taken any enforcement action.

As it turns out, Senator Seidman had also been concerned about the advertisement, and on November 28th used her opportunity during the Senate's Question Period to request information on any enforcement actions. The Senate returned from its winter break last week, and the following reply was tabled on February 19:
Health Canada has initiated action. A notice of non-compliance was sent to Imperial Tobacco Canada on November 1, 2018. The notice demands that the company immediately cease the promotion of Vype Epen3 by means of lifestyle advertising on Canadian television and social media platforms.
Health Canada has a rigorous compliance and enforcement program in place to ensure that manufacturers, importers and sellers of vaping products comply with the Tobacco and Vaping Products Act (TVPA). If necessary, Health Canada will take further enforcement measures.
Under the TVPA, only information and brand-preference advertising of vaping products is permitted. The TVPA bans advertising appealing to youth, lifestyle advertising, and sponsorship promotion, and restricts giveaways of vaping products or branded merchandise.
Additional restrictions came into force on November 19, 2018, including prohibitions on the sale and promotion of vaping products with features that are appealing to youth, the marketing of products using flavour names associated with candy, desserts, or soft drinks; and product promotion by testimonials or endorsements.
This answer raises more questions.

  • If the company was asked to "immediately cease the promotion of Vype Epen3 by means of lifestyle advertising", why was the television ad allowed to continue? 
  • Will the department lay charges for the more than 1,000 broadcasts of the ad which were made after November 1?
  • Will they lay those charges quickly?   Section 51 of the Tobacco and Vaping Products Act requires that such charges be laid within 2 years of the offence being committed.  That makes November 18, 2020 the last possible day to lay charges before the guilty parties get off scot-free.
  • Will the television stations which profited from the broadcasts also be charged? 
  • Are there any consequences at all for nicotine multinationals and broadcast giants who contravene health law?
  • Imperial Tobacco was also asked to immediately remove lifestyle ads from "social media platforms." So why are thousands them still there? (See our blog of February 7, 2019).
  • Why do you have to be a Senator to get information in writing on enforcement of the law?

A list with more than 1,000 occasions when the Vype ad was broadcast in Canada after Health Canada informed Imperial Tobacco to "immediately cease" can be downloaded here. (The records were found in the program logs filed by broadcasters with the Canadian Radio-Television and Telecommunications Commission).