This post is in two parts. The first part reports on Health Canada's recently-released Forward Regulatory Plan, and what it might (or might not) mean for reducing the appeal and accessibility of vaping products to young people.
The second provides an update on other recent communications by federal officials and why these suggest that we should continue to assume Health Canada is unlikely to finalize its proposed ban on e-cigarette flavourings under the current ministers.
Part 1: Health Canada's Forward Regulatory Plan 2023-2025
Canadian federal departments are required by Treasury Board policy to "provide advance notice to stakeholders, including Indigenous peoples, on upcoming regulatory changes over a period of 24 months so that they can engage in regulatory development and plan for future regulatory changes at the earliest opportunity." These Forward Regulatory Plans must be updated annually and are generally published at the start of each fiscal year (April 1st).
This year, for reasons not shared, Health Canada delayed the release of its 2023-2025 Forward Regulatory Plan for three months, updating the tobacco control regulations only last week.
The new plan indicates there are 5 tobacco and vaping regulations under development -- however two of those were finalized in the weeks between the adoption of the plan and its publication on the website. On June 7, regulations to update health warning messages on tobacco products were published in the Canada Gazette, and two weeks later so too were regulations to require vaping manufacturers to report information on sales and ingredients. The three uncompleted regulations identified in the plan are: (1) updates to the Tobacco Reporting Regulations; (2) restrictions on flavourings, and (3) rules for age-gating e-sales of tobacco and vaping products.
As shown on our Timeline of Tobacco and Vaping Regulations, the first of these has been on the workplan for over 6 years, and is not moving quickly. The anticipated date for draft regulations has already been punted 5 times - draft regs were originally scheduled for Spring 2019 it are now not expected until at least Winter 2024. These are expected to increase the amount of information required of vaping manufacturers and to modernize the reporting system for tobacco manufacturers. They may also establish criteria by which reported information is made public by the department.
The other two identified regulations are aimed at protecting youth from vaping. As reflected in the Timeline, work on both proposals was initiated in early 2021 when Patty Hajdu was Health Minister. Under Minister Patty Hajdu's successors, however, both these proposals have stalled, and neither currently has a target date for the next steps.
The draft regulation to ban flavourings (Order Amending Schedules 2 and 3 to the Tobacco and Vaping Products Act (Flavours) and Standards for Vaping Products' Sensory Attributes Regulation) first appeared on the Forward Regulatory Plan in February 2021. At that time, the stated purpose was; "to prevent vaping product use from leading to the use of tobacco products by young persons and non-users of tobacco products. In particular, the proposed restrictions are intended to protect these individuals from inducements to use vaping products and from exposure to and dependence on nicotine that could result from the use of vaping products." The purpose was later narrowed to remove reference to adult non-smokers and protection from addiction.
Draft regulations on flavour restrictions were prepared soon after (pre-published in June 2021), As discussed in an earlier post, there has been no further indication of federal interest in these regulations, leading to speculation that they might be withdrawn from the Forward Regulatory Plan altogether. Notably, they were not dropped from the plan, although on this year's updated notice the following text was added: "Reducing the promotion and appeal of vaping products to young people are commitments made in the 2019 Mandate Letter." This is a curious statement, as it clearly links the initiative to the previous Minister, and to an expired mandate. (There is no inclusion of any mention about youth vaping in the mandate letters which direct either Minister Duclos or Associate Minister Bennett.)
The proposal for better age-gating for e-commerce of vaping products. (Amendments to the Tobacco Access Regulations (Age Verification for Online/Distance Sales). Age verification systems for tobacco have generally focused on face-to-face transactions at brick-and-mortar outlets, as tobacco is generally not sold through e-commerce (as cannabis and vaping products are). In the five years since the vaping trade has been legal in Canada, no provincial or federal government has set standards that e-retailers must meet either with respect to selling to young people or to allowing young people to see the promotional information on their websites. As David Hammond and his research team recently noted, youth face no barriers "more advanced than selecting a box to confirm that the person accessing the site was above the legal purchasing age."
The original target date for draft access regulations to be published in Canada Gazette Part I was Fall 2021. No timeframe is indicated in the current plan.
In addition to these two stalled initiatives, there was a third regulatory initiative to protect youth that has now completely disappeared from the regulatory plans of Ministers Duclos and Bennett.
Restrictions on vaping designs: (Regulations Amending the Vaping Products Promotion Regulations (Package and Design Features) The purpose of this regulation, as described in the 2021-2023 Forward Regulatory Plan was "to protect young persons and non-users of tobacco products from inducements to use vaping products. The proposed regulations would place certain limits on what promotional elements can appear on vaping product packages. They would also impose restrictions on design features that are appealing to youth to prevent their use in the manufacture of vaping products."
The need for such regulations seems obvious, given the known impact of the design features of JUUL (including the invention of salt nicotine) and the current experience with disposable e-cigarettes. The department has not formally explained why this proposal was dropped from the plan.
In short, although youth vaping is at the same high level that prompted concern in 2021, three measures proposed at that time to address it have been stalled or abandoned. Young people continue to face inducements to try flavoured vaping products, to use colourful and inexpensive disposable products, and to generally face few barriers in gaining access to promotional material on e-commerce websites that are supposed to be age-restricted.
Part II: An update on Health Canada's messaging on flavour restrictions
As reported here in March, the studied silence on the topic by elected and appointed officials and the disappearance of the regulation from the 2023-2024 departmental workplan pointed at a decision to let this regulation die quietly on the vine. Recent communications from the department offer no reassurance that new regulations with respect to flavours, access or design are planned.
The current Departmental plan identifies a "new" approach to smoking cessation and a "reconsideration" of youth vaping. The workplan identifies six "new or ongoing measures to address youth vaping" - none of which are new regulations on flavours, access or design features.
Official statements make no reference to new regulations. This spring, Health Canada announced new regulations that will require vaping manufacturers to provide information to government (not consumers) on the ingredients of their products and on the quantity of their sales.
The press release which announced the new regulations also provided an overview of federal actions to "address youth vaping through public education campaigns to inform youth about the risks and harms associated with vaping, by prohibiting the promotion of vaping products where it could be seen by youth, requiring warnings on advertisements and package labels about the risks of vaping and limiting the concentration of nicotine in vaping products." There was no mention of any plan to address flavours, reduce access or curb designs.
Answers to Parliamentarians suggest youth vaping is not the focus of flavour policies. This spring government officials responded to parliamentary inquiries about flavour regulations without stating any commitment to put these in place. Instead, they focused their answer on their intention to encouraging smokers to switch to vaping.
On June 6, for example, Senator Chantal Petitclerc raised concerns about high rates of youth vaping "due to the appeal and availability of flavours. The existing restrictions do not seem to be sufficient. As senators will recall, vaping was supposed to help adult smokers stop smoking without attracting young non-smokers. Does the government realize that it needs to act quickly to make vaping less appealing to young people and thereby protect them from nicotine dependency?" (Senator Petitclerc has reasons to express concerns -- it was she who introduced the government's legislation to legalize the vaping market).
The answer was provided by Senator Gold, the government's official representative in the Senate. Typically, such answers are read from a binder of responses prepared by departments in anticipation of Question Period. His reply connected the fate of vaping flavours to the department's desire to see smokers switch to vaping products. "As you know, honourable senators, the government has already taken a number of steps to reduce the appeal of vaping products, not only for young people but for everyone. The government eliminated and banned lifestyle advertising on television and in stores, as well as the social media content of influencers who are trying to encourage young people to take up this habit. That being said, I have been informed that the government is still examining this issue to find more ways to help adults, in particular, transition from smoking cigarettes, cigars and the like to vaping, while not encouraging the younger generation to take up this habit."
