NNSW - Progress towards implementing the advice of Canada's Chief Medical Officers of Health

The overarching objectives of these recommendations are to protect young people from inducements to use vaping devices by regulating such devices as equivalent to tobacco products, and to encourage smokers who use vaping devices to use them solely to end or reduce their use of all nicotine-containing products.

Council of Chief Medical Officers of Health

January 2020 

In early 2020, a few weeks before COVID-19 was declared a pandemic, Canada's Council of Chief Medical Officers of Health (CCMOH) issued their third statement about vaping. The occasion was National Non-Smoking Week, and the focus was on the need to intensify regulations on vaping products and to re-construct the policy approach to this market. 

This post tracks the development of regulations which respond to those recommendations. Over the past 24 months, eight provinces, three territories and the federal government have amended their legislation or regulations in order to strengthen controls on the vaping product market. 

No apparent progress, however, has been observed towards the CCMOH recommendations that a new and broadened regulatory approach towards nicotine products be established, or that nicotine product manufacturers be required to provide evidence that their products will benefit the public before they can be marketed.

Links to additional information, including a downloadable summary of this progress, are provided at the bottom of this post.

MARKET REGULATIONS 

Flavour bans

The CCMOH called for a ban on all flavoured vaping products (with exemptions for some flavours), either by federal or provincial governments. 

At the time of the recommendation only one province (Nova Scotia) had decided to ban all flavours but tobacco, which was put into force on April 1, 2020. Two other provinces followed suit: Prince Edward Island (March 1, 2021) and New Brunswick (September 2021). Nunavut passed legislation to ban flavours in 2021, but this has not yet been proclaimed into law. The Northwest Territories recently initiated a consultation process on the topic. Three provinces now only allow the sale of most flavours in specialty vape shops (Ontario, July 2020; British Columbia, September 2020; Saskatchewan, September 2021).

Last June, Health Canada published draft regulations that would ban flavours other than tobacco, mint, menthol, as well as prohibiting sugars and sweeteners and restricting the flavouring ingredients that could be used.

(In the past two years six European countries have introduced legislation to ban flavours: Denmark, Hungary, Netherlands, Ukraine and Lithuania. Such measures were adopted in Finland in 2016 and Estonia in 2019.) 

Nicotine restrictions

The CCMOH called for the nicotine content in vaping products to be limited to a maximum of 20 mg/ml. It also called for the development of other standards on nicotine delivery, such as temperature or the use of nicotine salts, if evidence supported these measures.

As a result of Health Canada regulations, nicotine concentration of vaping liquids was capped at 20 mg/ml effective July 23, 2021. Two provinces had earlier imposed this standard: British Columbia and Nova Scotia, both in September 2020.

(The 20 mg/ml maximum has been adopted by 41 countries, covering 70% of the population living in countries where e-cigarettes are permitted for sale.)

Safety requirements for ingredients

The CCMOH called for constituents of e-liquids to be regulated on the basis of their potential to cause harm when inhaled rather than oral ingestion.

The federal government is the only Canadian jurisdiction which is proposing to restrict the ingredients that can be used in vaping products, and some ingredients are already banned. These restrictions are based on the impact of the ingredients on flavour sensation or colourings, not on inhalation risk. (In the proposed revised Schedule 2 to the federal law, Health Canada is proposing to permit the use of some flavouring agents which are known to be harmful when swallowed or inhaled, including estragol, furfurl alcohol, pyridine, isophorone and others.)

Taxation 

The CCMOH called for vaping products to be taxed "in a manner consistent with maximizing youth protection while providing some degree of preferential pricing as compared to tobacco products."

Four provinces have imposed specific excise taxes or higher sales taxes on vaping products than on other consumer goods. B.C. increased the PST on vaping products from 7% to 20% (January 2020), Nova Scotia has a tax of $0.50 per millilitre of liquids (September 2020), Newfoundland and Labrador has a 20% tax on devices and liquids (January 2021) and Saskatchewan increased its sales tax on those products from 6% to 20%.(September 2021). 

The federal budget delivered in April 2021 proposed a specific excise tax of $1 per 10 ml of vaping liquids or fraction therefor (effectively a minimum tax of $1 per pod or other unit sold). A consultation on the tax was held, and the government indicated that the tax will come into effect “in 2022”.

Age 21 

The CCMOH called for the minimum age to be sold tobacco or vaping products to be increased to 21 years.

Both federal and provincial governments have minimum age laws. The federal minimum age remains 18, and only Prince Edward Island has raised the minimum age to 21 (March 1, 2020).

(In late 2019, the United States raised the minimum age to be sold tobacco or vaping products to 21, joining at least 7 other countries which ban the sale of tobacco to younger people  - Sri Lanka, Mongolia, Honduras, Uganda, Ethiopia, Philippines, and Singapore).

Age-gating

The CCMOH called for requirements for age-verification of internet purchases of vaping products that are the same as those required for cannabis.

In April 2021, Health Canada included the development of “Amendments to the Tobacco Access Regulations (Age Verification for Online Sales)” in its Forward Regulatory Plan.  The department indicated that the proposed regulation would identify the “mechanisms that must be undertaken to verify age and identity in the context of online sales.”   No further information has been made public.

Promotion

The CCMOH called for the federal government to restrict the advertising/marketing/promotion/ sponsorship of vaping devices in a manner consistent with maximizing youth protection and to allow adult-oriented marketing if aimed solely at supporting adult smokers ending or reducing their use of all nicotine-containing products. It called on provincial governments to ban all point- of-sale advertising other than in adult-only specialty vape shops. 

Since 2020, federal regulations on vaping product promotions have been put in place. These regulations forbid advertisements that can be seen by youth (" a vaping product or a vaping product-related brand element must not be promoted by means of advertising done in a manner that allows the advertising to be seen or heard by young persons."). 

All provincial governments have passed legislation to ban point-of-sale advertising where it can be seen by children. The federal regulation also prohibits these ads.

Federal regulations permit some forms of advertising to adults, but neither they nor provincial regulations restrict ads based on whether they are linked to supporting ending or reducing nicotine use. 

Packaging

The CCMOH called for the federal governments to require plain and standardized packaging along with health risk warnings for all vaping products

Federal government requirements for health warnings on vaping products came into force on July 1, 2020.  The only health risk identified in these warnings is addiction. 

The federal government does not currently propose to require plain packaging of vaping products, but one province has taken steps in this direction. British Columbia's E-Substances Regulation allows the sale of vaping products only when “packaged in a plain manner that does not contain any text or image other than as required or permitted under this section.” 

Pre-market requirements.

The CCMOH called for the federal government to require product manufacturers to disclose all ingredients of vaping devices to Health Canada as a condition of being marketed, including establishing consistency in reporting nicotine levels in both open and closed vaping systems.

Health Canada has indicated its intention to require vaping manufacturers to report such information. In the Forward Regulatory Plan 2021-2023, it identifies that “Vaping Product Reporting Regulations” will be developed, and that draft regulations would made public this winter.   

Retail Licensing

The CCMOH called for provincial governments to require a vendor's licence for those selling vaping products.

Five provinces have adopted requirements for retail licenses or have imposed registration requirements on retailers who wish to sell vaping products: Quebec (2015), British Columbia (July 2020), Nova Scotia (July 2020), Newfoundland and Labrador (2021), New Brunswick (April 2022). In Prince Edward Island, vaping products may only be sold in specialty stores that meet specific requirements, although a license is not required. Ontario requires specialty vape stores to be registered with local health authorities. 

ADMINISTRATION AND GOVERNANCE 

Enforcement 

The CCMOH called for the federal government to enhance compliance, enforcement and public reporting and called on provincial governments to routinely use youth test purchaser.

Health Canada has subsequently made public the result of its enforcement activities, and has reported on the results of three rounds of inspections of vaping retailers. In December 2021, Health Canada disclosed that it “has not pursued any prosecutions against regulated parties manufacturing or selling vaping products under the TVPA.”

As reported earlier this month, there is limited information on the results of compliance activities underway in Canadian provinces. 

Health Education 

The CCMOH called for governments to collaborate to enhance public awareness and educational initiatives on the risks of vaping products, targeted at young, parents, educators and health care professionals.

There is no consolidated report on such activities. Health Canada runs a “Consider the Consequences” campaign directed at young persons, with a 3-year budget of $12 million. Reported expenditures for Health Canada’s Youth Vaping Prevention Campaign were over $6 million in 2019-2020. 

Cessation support

The CCMOH called for governments to establish comprehensive cessation initiatives for people with nicotine addiction, especially for youth.

There is currently no consolidated report on such activities. Health Canada has provided financial support for the development of programs to support vaping cessation among younger Canadians,  as have some provincial governments.

Health Research

The CCMOH called for governments to monitor and research and short and long-term health effects of vaping products and to research the effectiveness of policy approaches to address youth vaping.

In 2020, the Canadian Institutes for Health Research with the Canadian Cancer Society awarded 27 grants for research directed to the health effects of vaping and policy approaches to address youth vaping. Through its Substance Use and Addictions Program, Health Canada has provided support for the development of youth vaping cessation interventions and research on policy development.

The CCMOH called for governments to research the effectiveness of vaping products in supporting smokers to end or reduce their use of all nicotine-containing products.

The Canadian Task Force on Preventive Health Care has conducted a systematic review of evidence on ‘Tobacco Smoking in Adults’ and is currently preparing draft guidelines. These are expected to be released in 2022/23. It is not clear that this will address “ending or reducing their use of all nicotine-containing products”, which is not an identified goal of the federal Canada’s Tobacco Strategy.

Monitoring and Surveillance

The CCMOH called for federal and provincial governments to enhance surveillance and reporting of vaping product use and population health impacts.

Since January 2020 national surveys have been established or expanded to include vaping use. These include Statistics Canada’s annual Canadian Tobacco and Nicotine Survey, which was conducted in the winter of 2019-2020, 2020-2021 and is currently in the field for 2021-2022. The results of the first two waves have been made  public. Since 2020, Statistics Canada's annual Canadian Community Health Survey has included questions on e-cigarette use, although this data not yet been released.

Health Canada has supported consumer research on vaping product use, including a vaper panel which has monitored behaviours of some individuals over a two-year period.

Other national surveys were diminished in this period. The formerly bi-annual Canadian Student Tobacco, Alcohol and Drug Survey was last conducted in 2018-2019. It did not take place in the 2020-2021 school year, as an apparent result of a delay in changing suppliers. The contract was awarded in December 2020 to CCI Research and the survey is in the field for the 2021-2022 school year. Federal funding supports the COMPASS survey, which is conducted in selected schools by University of Waterloo. 

Provincial surveys on vaping behaviours in the general population are conducted in some provinces, (including Quebec and Ontario) as are provincial surveys of young person's vaping (Quebec, Ontario, British Columbia).

Policy Revision 

The CCMOH called for governments to work together to develop a broad regulatory approach to all alternative methods of nicotine delivery (i.e. other than tobacco products). They recommended that a component of any such regulatory approach should be the requirement for  manufacturers to demonstrate that marketing new products is in the public interest.

No efforts to develop such a regulatory approach have been made public. 

(Premarket authorization is the approach now required by the U.S. Food and Drug Authority for e-cigarettes and novel tobacco products).

Resources-Fact sheets:

• How Canadian governments have responded to recommendations of their Medical Officers of Health on vaping
• Timeline of selected regulatory actions on electronic nicotine devices
• At-a-glance: Provincial restrictions on vaping products

Reporting on enforcement of Canada's tobacco and vaping laws.

This post reports on efforts by Canadian governments to ensure that retailers of vaping products follow provincial and federal laws, and identifies where official and community reports on enforcement action can be found.

VAPING

Federal enforcement of restrictions on vaping marketing. 

Since 2019, Health Canada has proactively disclosed reports on its activities to ensure compliance and enforcement of the federal Tobacco and Vaping Products Act and the Consumer Product Safety Act. These reports are made available on Health Canada's website. 

• Between July 2019 and December 2019, Health Canada conducted on-site inspections of 1080 specialty vaping shops and 2083 convenience retailers. Four out of five (84%) vape stores and one in eight (13%) convenience stores failed inspection. Enforcement actions included "seizure" (products remained on-site), and warning letters. Infractions noted were those related to toxic labelling, testimonials or endorsements, child resistance container packaging requirements, promotion of prohibited flavours, and tobacco product-related brand elements.
• Between July 2020 and March 2021 Health Canada conducted on-line inspections of 304 Instagram accounts, finding that more than half (161, or 53%) were non-compliant with respect to promoting prohibited flavours, providing testimonials or endorsements. No other forms of non-compliance (absence of health warnings, youth access to media, etc) were identified. Warning letters were sent to these businesses.

Low compliance with federal law has been identified by non-governmental bodies in the health and industry sectors. In the summer of 2021, our agency found that vaping industry leaders were frequently non-compliant. The Vaping Industry Trade Association (representing large manufacturers) has issued its own guidelines for compliance, and also commissioned a review of the sales practices of a sample of on-line stores. In this review, 93% of the internet stores inspected were found to contravene federal prohibitions on certain flavours, and that fewer than half posted the mandatory health warning. 

Instagram promotion of a
 dessert-flavoured vaping product 

There are indications retailers who receive warning letters nonetheless fail to align their business practices with federal law. This month we reviewed the Instagram accounts of the 161 businesses that had received warning letters from Health Canada inspectors. We found that 72 (45%) continued to display testimonial-endorsements or promote prohibited flavours, some of which are shown here. Other infractions, such as the absence of health warnings, the use of lifestyle imagery and youth access to the marketing were observed in many cases. 

Health Canada does not routinely disclose whether it has pursued any prosecutions under these acts, but in 

Instagram promotion 
using testimonial endorsement

December 2021, it disclosed that to date it had not "pursued any prosecutions against regulated parties manufacturing or selling vaping products under the TVPA." The decision to escalate enforcement proceedings is explained as follows:

"If compliance cannot be achieved, subsequent enforcement actions are pursued depending on a range of factors, including but not limited to:
• severity/impact of the alleged non-compliance;
• continuation or the probability of reoccurrence of the non-compliance;
• compliance history of the establishment;
• program priorities and available resources. "

Compliance and Enforcement activities by provincial governments

The following governments have made public certain enforcement activities related to vaping retailing. 

Prince Edward Island engaged a dedicated tobacco enforcement officer in 2019, following concerns that inadequate enforcement was leading to increased infractions (with 20% of retailers willing to sell to an underage test shopper).  Nine months after PEI's restrictions on flavoured vaping liquids came into force (in March 2021), three retailers had been taken to court, and charges had been laid against an additional retailer. Outcomes of enforcement activities are not proactively disclosed on the provincial web-site, but are communicated to the media. (This is a significant change from  past years, when PEI was reluctant to disclose the name of offending retailers.)

In December, 2021, the Nova Scotia government made public that on 29 occasions during the year its enforcement officials had seized vaping products which contravened provincial law because they were flavoured or had excessive amounts of nicotine. The retail value of the products seized was $605,000. In November, charges were laid against one of the suppliers (Vaporhub), with a hearing scheduled this month. Nova Scotia charges against individual sellers have also been made public last October.

Every five years, the Quebec government reports on its experience in administering its tobacco laws. The most recent of these is dated November 2020. In the preceding five-year period, the Quebec government found that compliance had grown, but that half of vape stores were non-compliant in their most recent inspections. Compliance rates grew from 27% in 2015-2016 to 51% in 2019-2020. Compliance was higher with respect to sales for minors (90% of stores passed inspection). 

TOBACCO

Routine disclosure of tobacco-related enforcement by federal and provincial governments

Health Canada previously made public annual reports on its compliance activities, but the most recent of these dates from activities now 5 years old (for 2016-2017). In that year the department conducted 6,792 retail inspections, reviewed the adequacy of more than 1,000 regulatory submissions  and analyzed samples of tobacco products. One in ten (11%) of retailers were found to be non-compliant with respect to labelling, promotion or other marketing practices, and one in 10 (11%) of manufacturers did not fully comply with reporting requirements. No charges were laid, and the most recent prosecution identifeid dated from 2006.

Newfoundland's tobacco law is enforced by Digital Government and Service NL. Compliance reports do not appear to be made public. 

New Brunswick's tobacco laws are inspected by the Inspection and Enforcement Branch of the Department of Justice and Public Safety, with some information provided in the department's annual reports. From this we know that the number of inspections has fallen considerably, but not whether compliance has improved.

The Ontario government delegates responsibility for inspection to local boards of health, and has established a guideline and protocol that requires annual inspections of each retail location. Under this protocol, boards of health are required to "publicly disclose a summary report of all retailer/owner convictions". The City of Toronto, for example, provides monthly updates on convictions, and Peel Region provides an ongoing list of retailers who have been found to be selling to youth.

The Quebec government report cited above provides the most extensive detail on tobacco and vaping-related compliance and enforcement activities by any Canadian government. Over a 5 year period the department conducted 32,949 inspections, observing non-compliance on 12,307 occasions (37%). Of the 10,617 charges that were laid as a result, 88% resulted in a guilty plea or verdict. The report also provides information on the inspection results for different aspects of the law.  Overall, slightly more than half (57%) of tobacco retailers were found compliant with respect to signage and displays, and 93% had refused to sell to a minor when tested. 

In December 2021, Saskatchewan's Auditor General raised concerns about enforcement of that province's tobacco and vaping laws. The departmental audit found that one-fifth (19%) of identified retail locations were not inspected, and that many retailers were not tracked at all. The AG noted that there were repeated offenses but that they "found no cases where the Ministry took retailers to court."

As part of its overhaul of tobacco legislation, the Alberta government is establishing a new enforcement procedure and team. Enforcement responsibilities had previously been unassigned.  This past summer the province reported that "the enforcement team is expected to be operational in the second half of 2021." 

The British Columbia government delegates responsibility for enforcement of its tobacco- and vaping-related laws to local health authorities. On its web-site, the province provides some information on enforcement results and practices (including its Compliance and Enforcement Policy Manual. Some tribunal results are also posted.