Health Canada's new law on vaping products (the Tobacco and Vaping Products Act, TVPA) received Royal Assent on May 23, 2018.
This was the starting gun on a race to dominate the legal vaping market. Some 8 months later, it seems that the federal rules for this race that were set in law are even weaker than expected, and have resulted in pervasive lifestyle ads -- except in Quebec and other provinces that have taken a better approach..
The federal law -- a permissive structure
The structure adopted in the TVPA is one that gives nicotine manufacturers a general permission to advertise, and then identifies styles of ads which are not permitted (i.e. lifestyle ads, ads that appeal to young people, testimonials). This “everything is permitted unless it is expressly forbidden” approach is the opposite of what the same law does with respect to tobacco products, where a a general ban on tobacco advertising exists, with some specific exemptions (i.e. direct mail addressed to adults). (Compare the law at s. 19-22 to s. 30).
The Quebec law - a restrictive approach
Of Canada's 10 provinces, Quebec has taken the most comprehensive approach to controlling tobacco advertising. Under the Quebec Tobacco Control Act (updated in 2015), electronic cigarettes are considered a tobacco product. Generally speaking the same restrictions apply to both categories of nicotine products. Vaping ads are tightly restricted, and are banned if they are "disseminated otherwise than in printed newspapers and magazines that have an adult readership of not less than 85%". Even then, printed ads may only "provide consumers with factual information about a tobacco product, including information about the price or the intrinsic characteristics of a tobacco product and about brands of tobacco products." They must also include a prescribed warning.
Other provincial restrictions
Some other provinces have also adopted additional restrictions on vaping ads. Nova Scotia's Tobacco Access Regulations exempts vaping stores from restrictions on displaying products at retail, but curtails their right to advertise other than by "a door decal"). Manitoba's Smoking and Vapour Products Control Act bans the advertising of vapour products "in any place or premises to which children are permitted access". Similar restrictions are in place in Prince Edward Island's Tobacco and Electronic Smoking Device Sales and Access Act.
Compare and contrast: Television
Imperial Tobacco has shown that it is prepared to play fast and loose with the federal restrictions, but that provincial laws have offered some protection.
Television advertisements for Imperial Tobacco's Vype ePen3 appeared daily in 6 provinces across Canada between September 3 and November 18th. Television ads are (sadly) allowed under federal law, but lifestyle ads are not. Despite the obvious lifestyle elements of the ad, it was broadcast until November 18th.
In January, broadcast logs for Canadian television stations were made public. From these, we now know that Imperial Tobacco's Vype ad was not broadcast in the provinces which have more powerful restrictions in place (Quebec, Nova Scotia, Prince Edward Island, Manitoba).
This ad was the subject of our complaint on October 18. If any enforcement action was taken by Health Canada against Imperial Tobacco or the broadcasters, no information has yet been made public.
Compare and contrast: Publications
In English-speaking Canada, Imperial Tobacco has focused marketing efforts on electronic publications, including ads on digital media, including newspapers, Instagram, Facebook and YouTube. As shown at the end of this post, these ads evoke excitement (explosions!), recreation (travel), glamour (sexy ladies!) and testimonials.
It is not clear at this point whether digital advertisers are respecting provincial laws and preventing these ads from being viewed in jurisdictions like Quebec. What is clear is that the ads that are being published in Quebec in conformity with its law are much closer to the intent of a ban on lifestyle advertising.
VYPE ads governed by Quebec's Tobacco Control Act
(from the Journal de Montréal, Quebec, February 2019).
(from the Journal de Montréal, Quebec, February 2019).
VYPE ads governed by the federal Tobacco and Vaping Products Act
(from Instagram, Facebook, Sports Net and YouTube, January-February 2019)
(from Instagram, Facebook, Sports Net and YouTube, January-February 2019)
