This Hallowe'en, Quebec kids get better protection from candy-flavoured nicotine.

Flavoured and Toy-shaped
vapes are now illegal in Quebec,
although they remain offered
for sale on e-stores.

On October 31, 2023 new measures to restrict e-cigarette sales come into effect in Quebec. On this day the revisions to the province's Regulation under the Tobacco Control Act come into force - ninety days after they were published in the province's Gazette.  

From this day on, e-cigarettes are included under the law's prohibition on the sale (s. 29.2) of "a tobacco product that has a flavour or aroma other than that of tobacco, including a menthol, fruit, chocolate, vanilla, honey, candy or cocoa flavour or aroma, or whose packaging suggests it is such a product." (The Quebec law includes e-cigarettes in the definition of tobacco product, but had exempted them from this provision until the regulatory change this year).

Quebec's new regulation also sets new labelling requirements for e-cigarette packaging and:

• prohibits the sale of disposable or capsule products with more than 2 ml of liquid (30 ml for refill containers)
• prohibits the sale of devices that resemble toys or for which the use can be concealed.

This post looks at the challenges for Quebec and other provinces to protect young people from flavours and other youth-oriented marketing without the support from the federal government.

In the absence of federal measures, six Canadian provinces have banned vaping flavours 

As of today, six eastern Canadian jurisdictions have banned all flavours in e-cigarettes. In order of implementation, they are Nova Scotia (April 2020), Prince Edward Island (March 2021), New Brunswick (Sept 2021), Northwest Territories (March 2022), Nunavut (May 2023) and Quebec (October 2023). 

These provinces join six other countries (Finland, Hungary, Netherlands, Ukraine, Lithuania, China) and five U.S. states (Massachussets, New Jersey, New York, Rhode Island and California) which have also banned all flavours other than tobacco. Australia has banned flavourings in its prescription-based system for e-cigarettes and many other countries (shown in black in the figure below) ban all e-cigarettes.

Three other Canadian provinces have adopted regulations to restrict the sale of flavoured vaping liquids to specialty vape shops where children are not permitted to enter. British Columbia (September 2021), Ontario (July 2020) and Saskatchewan (September 2021). Ontario and Saskatchewan also allow menthol and mint to be sold outside of these specialty shops.

But the federal government has stalled at the starting gate.

Federal regulation currently prohibits the use of some non-flavouring ingredients in vaping liquids, and does not allow for labels to suggest that the aerosols taste like confectionary, deserts, soft drinks, energy drinks or cannabis. 

In May 2021, Health Canada initiated regulations to restrict vaping flavours, but has not moved forward on these since then. The government will neither confirm nor deny that the proposal has been suspended. 

Questions raised in parliament this fall received the same non-response that had been given in the spring. When Senator Judith Seidman asked earlier this month "When does the federal government plan to ban flavours in vaping products?" - the response from the government representative was a telling "I do not know, and I am not in a position to predict what the government’s plan is." 

The Prime Ministers' office has not endorsed the measure.

In 2019, Prime Minister Trudeau directed incoming Health Minister Patty Hajdu to "address the rapid rise in youth vaping. This should start with regulations to reduce the promotion and appeal of vaping products to young people and public education to create awareness of health risks. You are encouraged to explore additional measures." It was under Minister Hajdu that draft regulations to restrict flavours were formally published in June 2021.

This minister was not reappointed to the  health portfolio after the 2021 general election. A new cabinet position was created, under which tobacco regulation was placed. In his instructions to the inaugural Minister of Mental Health and Addictions, the Prime Minister's mandate letter contained no reference to the flavour restrictions that had been proposed only six months earlier.

New mandate letters have not been issued since the July 2023 cabinet shuffle. The newly-appointed Minister of Addictions and Mental Health (Ya'ara Saks) has not said anything about flavours in her new role. There are indications that she has not yet discussed this topic with departmental staff.

A national approach is needed to make provincial laws enforceable.

Provincial governments which have banned flavours are limited in their ability to control the import of products from web-sites which operate from other provinces, and are not able to lay charges against businesses which ship flavoured products across provincial borders. (Some vape stores located in these provinces also continue to offer illegal flavours, without apparent provincial capacity to shut these sales down).

Without effective enforcement, provincial governments have not been able to fully protect children from these products being available. This is reflected in the results of the 2021-2022 Canadian Student Tobacco, Alcohol and Drug Survey (currently pulled off of Health Canada's website), which show continued use of flavours by youth in the  three provinces where flavour bans were in place at the time of the survey. 

Tobacco companies are assisting the informal market and social sources through which young people acquire flavoured vaping products. They offer deep discounts for volume sales, allowing an individual to purchase products at a wholesale price. Philip Morris on-line stores sells the disposable Veev-Now for $11 each, but cuts the price to only $6 per unit when purchased in quantities of 9 or more, and occasionally offers even deeper discounts. This rewards re-sellers who wish to import products into markets where flavoured products are not legal for sale.

By reducing the price of VEEV-NOW to $6 from $11,
PMI creates an incentive for re-sellers.

National health recommendations are being ignored.

Almost four years have elapsed since Canada's provincial and federal chief medical officers of health recommended that governments "Ban all flavoured vaping products and then provide regulatory exemptions or market authorizations for a minimum set of flavours to support smokers who choose to use vaping to end or reduce their use of nicotine-containing products."

Canada's major health organizations have all called for a ban on flavours - as have their international counterparts. (A list or such organizations is available here). 

Six of Canada's fourteen jurisdictions have taken steps towards implementing that recommendation -- but their efforts are being undermined by the failure of other governments to do so. National action -- preferably headed by the federal government -- is needed.

Trends in overall nicotine use in Canada.

For many decades, health regulators have focused on cigarette smoking as their indicator of tobacco and nicotine use. Around the world, statistical agencies ask variations of the questions "do you smoke cigarettes?" "when did you start smoking cigarettes?" "how many cigarettes do you smoke?" and use the answers to assess the success or failure of their tobacco control efforts.

This same approach has been grafted onto monitoring of vaping behaviour. Soon after these products appeared on the market (and long before they were legalized for sale), Health Canada included questions on e-cigarette use on its tobacco surveys. 

Information on the use of many other nicotine products - like cigarillos, cigars, chewing tobacco/snuff, pipes and waterpipes - is also collected in Canada. For some other products - notably heated tobacco sticks - there is still no monitoring instrument in effect.

This post (and the accompanying data sheet) use data from recent tobacco surveys to show how including information on any form of tobacco or nicotine use provides additional insights on the health behaviour of Canadians.

Measuring the use of any nicotine product in Canada.

Over the past decade, the Canadian Tobacco, Alcohol and Drug Survey (2013, 2015 and 2017) and its replacement, the Canadian Tobacco and Nicotine Survey (annually in the late winters of 2019, 2020, 2021 and 2022) have produced estimates of the number of Canadians who report past-month use of 7 categories of nicotine products: cigarettes, little cigars, cigars, traditional pipe, oral tobacco/snuff, water-pipe, and electronic cigarettes. In addition to the tables provided on government web-sites, the survey results are also available in Public Use Microdata Files (PUMF).

These PUMF files allow the identification of survey respondents who reported using any of the 7 products identified above during the month before they were surveyed. (It also identifies those who use pharmaceutical nicotine, such as patches or gum and those who used tobacco when they were smoking cannabis, but these were not included in the results shown below).

The survey is not currently constructed to establish a measure of how many people use a nicotine-bearing product every day, although they do ask about daily use of cigarettes, e-cigarettes and some other products. Someone who uses either e-cigarettes or traditional cigarettes every day but who does not use either product on each day could not be identified as a "daily" user from the survey as it is now designed.

Ten years of changed nicotine use, but not much progress against it.

The number of Canadians using nicotine is as high in 2023 as it was in 2013. A decade ago, 5.18 million Canadians reported that the used either cigarettes, other tobacco products or vaping products in the past month. In 2023, the estimate was slightly higher (5.22 million Canadians). 

Overall patterns of use have changed.  In 2013, four in five (82%) of nicotine users reported using cigarettes, but this past winter only two-thirds did (67%). (In both cases, they may also have used other products). The number of nicotine users who were identified as never smokers (they had smoked fewer than 100 cigarettes in their lifetime) more than doubled - from 478,800 to 1,001,100 Canadians. 

(click to enlarge, or download data sheet)

Young people make up the same proportion of nicotine users today as they did a decade ago. In 2013, about 1 in 5 nicotine users (18%) was under 25 years of age. In 2023 the proportion was almost the same (17%).

(click to enlarge, or download data sheet)

Because of population growth, there has been a slight decrease in the percentage of Canadians who use nicotine.  The prevalence of Canadians using nicotine products in the past month dropped from 18% in 2013 to 16% in 2023. (No statistical test has been performed on these estimates).

• The lowest estimates in the number and percentage of Canadians using any nicotine product coincided with the first winter of COVID (December 2020 to January 2021).
• Many more men than women used these nicotine products in 2013 (21% vs 15%), and the gender gap remained a decade later (20% vs 13%).
• The decrease in cigarette use in younger age groups has been largely offsets by increased use of other nicotine products. 
• In comparison with 2013, there was a small drop in the percentage of teenagers (aged 15 to 19) who used nicotine in 2023 (15% in 2023 vs 17% in 2013) 
• Roughly one-quarter of young adults (aged 20 to 24) used in nicotine in 2013 (24%), as do their younger cousins a decade later (24% in 2023). 

(click to enlarge, or download data sheet)

Implications for public health

Tobacco companies are steadily expanding the range of nicotine products they market. Over the past month alone, BAT began selling tobacco-less nicotine pouches in convenience stores in all provinces but Quebec. In other countries both BAT and Philip Morris have launched tobacco-less nicotine sticks intended for use in their heated tobacco devices.  

Using cigarette smoking as a measure of tobacco use is out-dated. Using tobacco use as a measure of nicotine addiction is also out-dated. 

It's time for health authorities to establish an indicator for nicotine use that can be used as a yardstick to measure the impact of changes in the nicotine market and also progress against nicotine use (a precursor to nicotine addiction, for which a separate indicator is likely also needed). 

Tobacco surveys should collect information on the complete range of nicotine products on the market, and the summary tables produced from these surveys should provide information on the emerging patterns of use and co-use of products. 

Data Sheet: Nicotine Users in Canada 2013 – 2023

Heads up! A peek at new nicotine products on the horizon ....

This post reports on recent actions by tobacco companies which signal new products or activities in Canada.

Philip Morris International plans to sell "tobacco free" heat not burn 

On Thursday, September 28 one of the world's two largest tobacco companies made a series of presentations to investors, the slides from which are available on their website. Within this series of presentations was an explanation of their new "LEVIA" heat sticks.

This heat stick is designed to work with the fourth generation of IQOS heat-not-burn electronic devices, ILUMA. This device uses a somewhat different heating system which does not pierce the heat stick and the tobacco (TEREA) or tobacco-free (LEVIA) sticks sold for it are not compatible with other sticks. ILUMA is not yet sold in Canada, but is intended to be present in 50 markets by the end of this year. (slide 8) (Lat month it became available for sale in the UK).

Conceptually, the LEVIA sticks are similar to those developed in Canada by PODA before the intellectual property for the novel nicotine delivery system was sold to ALTRIA last year. (Altria is a partner with PMI in IQOS distribution in the United States). 

Earlier this year, PMI advanced the registration of trademarks for ILUMA, TEREA and LEVIA in Canada. There is no requirement for the company to provide regulators of advance notice of their intention to sell these products. Because they are made with tobacco, the TEREA sticks would be taxed federally as manufactured tobacco sticks, at a per unit rate lower than cigarettes and would be subject to provincial restrictions on tobacco flavourings. Because LEVIA produces a nicotine aerosol, it would likely be regulated as a vaping product in Canada, taxed accordingly, and subject to provincial flavour restrictions.  

"POP TUCK FEEL"

In late September, the auditing firm engaged in Imperial Tobacco Canada Ltd insolvency proceedings reported to an Ontario court that "Imperial anticipates launching Zonnic in Canada in the fourth quarter of 2023." 

Zonnic is the brand name for the first nicotine pouches to be authorized for sale in Canada by Health Canada. A sneak-peek at the packaging is available on the Zonnic Website, which encourages visitors to "stay tuned".

As described here earlier, there will be few regulatory restrictions on the 5 permitted flavours of the 4 mg pouches. These products do not fall under laws which establish minimum age for sales, taxes, mandatory warnings, restrictions on television, billboard advertising or in-store displays.

A marketing slogan filed with the trademark office last spring: "POP, TUCK, FEEL" seems likely to be intended for these nicotine pouches -  it is the same slogan BAT uses to sell its VELO brand nicotine pouches in the UK. 

Noting the way BAT markets Velo and PMI markets Zyn, other countries have moved to tighten laws and prevent nicotine pouches from becoming a starter product for nicotine addiction. The Netherlands government responded to the sale of these products by commissioning research from its public health researchers, following which it banned the sale of pouches with 0,035 milligrams or more nicotine per pouch in November 2021. Belgium similarly imposed regulations which ban their sale (in March 2023).

Renewed "contraband" campaigns on the way?

Last week a series of press releases were issued to raise alarm about contraband cigarette sales. Tehse included the release of a report prepared by EY and commissioned by the Convenience Industry Council of Canada.  "Canadians losing billions to organized crime". This was soon followed by a  report from Imperial Tobacco on contraband in the prairies. 

This activity echoes previous collaborations between the convenience industry and tobacco companies to amplify concerns about contraband in order to pre-empt tax increases or regulation. And recent trademark registrations suggest a new campaign is on its way.

This summer Philip Morris International tried to registered not one but two designs for "Fight Contraband. Fight Together" in connection with proposed "Illicit Trade awareness programmes". The last record on the trademark office's database is that the trademark regulators considered this "Goods or Services Not Acceptable" 

Cheap cigarettes - whether they result from contraband sales, low tax rates or discount pricing - undermine public health because affordability is a major driver of continued smoking. 

In contrast to the cries of alarm from tobacco companies, Revenue Canada has produced its own estimates of the underground economy, with the most recent update for the 2014-2018 period. The CRA report attributes illegal and untaxed tobacco to be responsible for a tax loss of about $400 million, representing 4% of the excise tax revenue. By contrast, personal under-reporting of income (i.e. construction jobs done "under the table") and under-reporting and under-payment of corporate income tax is estimated to cost $5.1 billion to $8.3 billion in lost tax revenue.