Last week both houses of Australia's Parliament gave approval to an updated tobacco law. The Public Health (Tobacco and Other Products) Bill 2023 was introduced in mid-September 2023, and was approved by both the lower and upper chambers on December 7th.
Australia has long been considered a fore-runner of tobacco regulation. In modernizing its tobacco law, it has set an example for countries (including Canada!) on raising the bar for health protection. This post identifies 5 measures adopted in Australia that Canadian governments might want to copy.
1) A modernized and broad purpose.
The new Australian law has 3 objectives and identifies 12 means of obtaining them.
The objectives are (1) to improve public health by discouraging smoking and the use of regulated tobacco items, and encouraging people to give up smoking and to stop using regulated tobacco items; (2) to give effect to certain obligations that Australia has as a party to the WHO FCTC; and (3) to address public health risks posed by vaping and e-cigarette products. The 13 means include discouraging people who have given up smoking or vaping from relapsing, preventing and reducing nicotine addiction, reducing exposure to second hand smoke, reducing environmental risks of tobacco products, limiting innovations by tobacco manufacturers and increasing public knowledge about the tobacco industry.
By contrast, the purpose of the Canadian Tobacco and Vaping Products Act is vague and the specific objectives (similar to the 'means' in Australia) are narrow. The overall purpose of the law is "to provide a legislative response to a national public health problem of substantial and pressing concern and to protect the health of Canadians in light of conclusive evidence implicating tobacco use in the incidence of numerous debilitating and fatal diseases." The four specific objectives are removing inducements to initiate use, restricting access to young people, preventing misleading or deceptive messaging, and enhancing knowledge of health risks. These objectives were drafted in the mid-1980s (and mapped onto vaping products in 2018), but have not been substantially revisited in 35 years.
Adopting a broader scope, as Australia has done, would permit warnings about environmental damage, and would give Health Canada cover for more ambitious programming. Until then, there is no statutory obligation for the department to actually prevent youth uptake, or to facilitate or achieve cessation, and no mandate to reduce addiction to nicotine. Without legislation to back it up, the goal of "less than 5% by 2035" is more of a campaign slogan than an accountability framework.
Australia's example is particularly relevant to Canada given the recent introduction of a cost-recovery system for tobacco regulation. The legislation which proposes this regulatory charge limits the use of these funds to those "in relation to the carrying out of the purpose of this Act, including regulations." If a purpose similar to that of Australia's were in place, tobacco companies could be assessed for the costs of media campaigns to encourage quitting, for research, for environmental clean-up.
2) A belt and suspenders approach to regulating nicotine
In Australia, vaping products are not permitted as consumer goods, although they are available as prescription cessation aids for smokers. Their Therapeutic Goods Administration regulates the supply of electronic cigarettes through a system that does not require the same type of review and approval or licensing that is applied to some other medications.
In the revisions to its tobacco law, Australia's health regulators recognized that the drug-regulatory system permitted more advertising than was appropriate for e-cigarettes. As the legislative proposal explained: "In order to limit the risk of e-cigarette products becoming a gateway into smoking, and to address the health risks of vaping, this Act includes similar prohibitions [for advertising and sponsorships] in relation to e-cigarette products."3) Accelerated work on regulations
In Canada, the Tobacco and Vaping Products Act was before Parliament for 18 months before it was adopted in May 2018. Despite this long gestation, very few regulations under the act were ready to be put in place when the law was proclaimed. It took more than a year for warnings on vaping products to be regulated (December 2019) and two years before promotional restrictions on vaping products were in place (July 2020). A maximum level of nicotine in vaping liquids was not imposed for three years after the law was changed (June 2021), and basic reporting requirements on vaping manufacturers were not finalized for 5 years (June 2023).
Australia has avoided some of these delays by releasing draft regulations for consultation only days after its new law was passed by parliament and before it is in force.
4) Greater transparency and protection from tobacco industry interference
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| Australia Public Health (Tobacco and Other Products) Bill 2023 |
Canada also imposes restrictions on brand names. In 2011 the terms "light" and "mild" were prohibited and in 2019 as part of plain packaging regulations a ban was placed on brand names that "evoke a colour or a characteristic of a filter." Terms that imply positive health effects - like "organic" - and terms which convoke positive qualities - like "smooth", are still permitted.
