Health Canada's Second Legislative review: a prescription for some small fixes, but no firm plan to make them.

Late Monday afternoon - and after a silence that has extended since her appointment last summer -- the Hon. Ya'ara Saks, the federal Minister of Mental Health and Addictions (and Associate Minister of Health), laid out her vision for tobacco control.

The occasion was the mandatory tabling of the second Tobacco and Vaping Products Act legislative review. Because this federal law requires the Minister to table a report in Parliament by May 23 on every alternate year, the report was 25 days late. This is a marked improvement on the previous minister, who was in breach of the law for almost a half year before tabling the first report in December 2022. 

The timing, it would seem, was related to the appearance by Ms. Saks and her colleague the Minister of Health (the Hon. Mark Holland) before the House of Commons Standing Committee on Health. As a hold-over of ancient parliamentary rights (grievance before supply), federal ministers in Canada face a wide-ranging grilling by elected parliamentarians each spring. 

The Legislative Review was released a few minutes before 5:00 in the evening -- only minutes before the Minister appeared before the committee and could have faced concerns about the tardiness fo the report. As it turns out, tobacco and vaping were not mentioned by either minister or any members of the committee.

The outcome of this report is difficult to discern. Although she provided parliament with a 57 page review, identified areas of weakness and proposed specific action steps to address them, the Minister nevertheless made no commitment to act on any specific issues.

Instead, her report punted meaningful reforms to the future - and likely to a future minister:

"... Amendments at the level of the Act are not proposed at this time. ... The analysis indicates that there are areas that could be considered to further reduce tobacco use in Canada, preserve the gains made, and ensure the legislation remains modern and responsive to emerging issues and products. Additional analysis in the areas for potential action could result in future legislative or regulatory amendments." (emphasis added)

The recommendations in this report are a good starting point conversations on how to improve the federal tobacco law -- when and if the department and the minister are ready to talk. At the end of this post, the "activities for consideration" (aka recommendations) are listed.

A consultation exercise, not a performance audit

As was the case in the first report, this second Legislative Review was prepared by public servants and was developed in the form of a public consultation (our response can be found here). The department received 115 written submissions and held 19 meetings. Similar also to the first report, this one is heavily reliant on the views of those who participated in the consultation and reveals little about any internal analyses conducted by those who administer the law.  

Nonetheless, this is a highly readable report which contains a lot of useful and important information on the Canadian experience with tobacco use, and some usefully-presented statistics. 

• Revenues from tobacco sales are divided among the federal taxes (21.7%), provincial and territorial taxes (31%) and industry revenues (38.4%).
• Canadian smokers are aging -- with 3 in 5 smokers now older than 45 years of age and fewer than 1 in 20 under 25 years of age.  

Other takeaways from the Second Legislative Review of the TVPA 

Engagement with indigenous communities is the department's highest priority

More than half (10 of 19) of the meetings held by the department were with indigenous stakeholders, and seven pages of the report are allocated to detailing the feedback from indigenous agencies which are identified by name. By contrast, the traditional spear-carriers for tobacco control such as the Canadian Cancer Society, the Heart and Stroke Foundation and Lung Association are not mentioned by name.

The report opens with a de facto apology to indigenous communities for lack of extensive consultation and engagement when amending the legislation. The first issued identified is "Prioritizing First nations, Inuit and Métis engagement, cooperation and reconciliation." 

Interest in new products, but not yet in new powers.

The report is a disappointment for those who believe a new nicotine regulatory framework is needed to manage changes to the market that are being driven by tobacco industry innovation. 

As we recommended last fall: "the Legislative Review is an opportunity for Health Canada to present its analysis of developments in the nicotine market, to articulate a public health objective with respect to this market, and to make recommendations for the modernized legislative foundation that would support these objectives."

While this year's legislative review acknowledges that "the nicotine market continues to evolve" and that some respondents sought legislative changes, there was no analysis of the potential or risks of an increasingly heterogenous nicotine market other than the current challenge of nicotine pouches.

De-emphasizing "harm reduction"

In 2018, Health Canada returned to harm reduction as a key element in its tobacco control strategy (previous inclusions had been in the 1970s and in 2001). In recent years, however, this element seems to be more soft-pedalled and there are fewer direct references to the department trying to encourage smokers to switch to alternative nicotine products. 

Yesterday's report continues that trend. In the first Legislative Review, for example, attention was drawn to Canada's Tobacco Strategy including "harm reduction - helping those who cannot or do not wish to quit using nicotine to identify less harmful options". In this Second Review, the characterization of the department's strategy did not include the concept, and most references to harm reduction were reflections of input from participants in the consultation.

Potential for the tobacco industry to pick up the tab for some cessation services?

For decades, government reports have included hand-wringing statements about the challenge of supporting, encouraging and achieving successful quitting by Canadian smokers. This report similarly identifies the lack of general progress as well as specific health inequities in quitting - but also includes a new thought.

A month ago, Parliament approved changes to the Tobacco and Vaping Products Act to authorize the collection of cost recovery fees "in relation to the carrying out of the purpose of that Act."   This Legislative Review suggests charging the industry costs related to cessation programming and public education "for equity-deserving groups" and singles out indigenous communities as recipients.  

Long-promised work is still being promised.

Since at least 2016, Health Canada has made public statements that it intends to introduce guidelines to assist decision-makers in implementing Article 5.3 guidelines of the Framework Convention on Tobacco Control. (These are the suggestions for how governments should address tobacco industry interference, including by shutting down PR campaigns like #UNSMOKE). 

Other long-stated  intentions repeated in the Second review include:

• facilitating public disclosure of information reported to the government by industry. This was the subject of a parliamentary recommendation almost 20 years ago, to which the government said it would try to do more. 
• addressing weaknesses of age-verification in online sales. Three years have elapsed since the department included this in its Forward  Regulatory Plan. 
•  supporting FCTC discussions on potential new tobacco control measures. Earlier this year the Treaty members agreed to Canada's suggestion to move forward in this area.  

Second Legislative Review on the TVPA: "Activities for Consideration"

Prioritizing First Nations, Inuit and Métis engagement, cooperation and reconciliation

• Recognizing the Government of Canada's obligations to take, in consultation and cooperation with First Nations, Inuit and Métis Peoples, all measures necessary to ensure that existing and new federal laws are consistent with the UNDRIP, an assessment of the impact of the TVPA on First Nations, Inuit and Métis Peoples to better understand their unique needs, priorities and recommendations related to the regulation of tobacco and vaping products in their respective communities is necessary. This assessment should be distinctions-based and ensure that the distinct rights, interests and circumstances of the First Nations, Inuit and Métis are acknowledged, affirmed and implemented.
• Continue to support interventions led by First Nations, Inuit and Métis to address the high rates of commercial tobacco use in their respective communities.

Addressing Barriers to Cessation

• Develop an equity-informed cessation plan by examining barriers to quitting and engaging partners, including: people with lived and living experience, particularly from equity-deserving groups; First Nations, Inuit and Métis Peoples; provinces and territories, and health care professionals.
• Information about existing cessation supports and programs delivered by health care professionals could be shared to promote best practices and expand reach. National smoking cessation standards could be implemented to establish consistent practices across the health care system.
• Work with provinces and territories to enhance awareness of the availability of and access to cessation medications and services, particularly for equity-deserving groups.
• Recover costs from industry related to cessation programming and public education for equity-deserving groups, including funding provided to First Nations, Inuit, and the Métis Nation to develop and implement their own self-determined, culturally appropriate and distinct approaches to reducing commercial tobacco use based on their own needs and priorities.

Strengthening enforcement, increasing transparency and addressing industry interference

• Develop additional tools to respond to non-compliance with a progressive enforcement approach and continue to work closely with provinces and territories to identify, monitor and address issues of non-compliance. Legislative and regulatory options should be explored when considering additional tools to address issues related to compliance and enforcement issues.
• Expand efforts to make compliance and enforcement more transparent by regularly publishing information about actions resulting from compliance and enforcement activities.
• Proactively disclose information on tobacco products from industry, that can be made publicly available, to increase transparency, accountability and the use of data by other orders of government, academics, and citizens.
• Disseminate guidance to Canada's policy and decision-makers to raise awareness of the World Health Organization Framework Convention on Tobacco Control Article 5.3 obligations.
• Examine remaining promotional activities by tobacco product manufacturers and importers, including intra-industry promotional activities and activities related to price promotion, discrimination and segmentation, to better understand the impact of these activities on tobacco use in Canada.

Preserving gains and ensuring legislative framework is responsive to modern realities

• Enhance Health Canada's understanding of how the market is changing by collecting new information about technical innovations.
• As Health Canada takes action to address risks associated with the access and apparent appeal to youth and people who do not smoke of certain nicotine replacement therapies approved under the Food and Drugs Act, it will be important to ensure the appropriate oversight is in place to protect youth, while maintaining the smoking cessation objective of authorized nicotine replacement therapies to meet Canada's Tobacco Strategy. 
• Enhance compliance and enforcement actions under existing authorities to prevent youth from accessing tobacco products online.
• Continue examining retail environment with provinces and territories with a view to assessing the current provisions and practices, identifying collaborative opportunities and considering all possible regulatory, policy, program and research activities to ensure that youth are and remain adequately protected.
• Consider developing guidance or regulatory requirements to set out in greater detail the actions that regulated parties involved in online and distance sales may take to verify age and identity.

Innovative international best practices

• Work with international counterparts to identify measures beyond those required by the World Health Organization Framework Convention on Tobacco Control and assess the feasibility and effectiveness of implementing these measures within Canada.