This post discusses the increasing importance of amending the Tobacco and Vaping Products Act to give Health Canada a broader scope for action and clearer instructions from Parliament. This reflection is prompted by two actions recently taken by Health Canada.
The first of these was the release of the department's proposed framework for cost recovery from tobacco companies. As reported here earlier, the department's capacity to apply the polluter pay principle to this industry is severely limited by the narrowly-constructed purpose of the current law. Only those costs which are linked to the legislative objectives of the Tobacco and Vaping Products Act (TVPA) can be claimed from the industry.
The second action was the Ministerial Order made public and formally published in August which set specific rules for the marketing and distribution of nicotine pouches regulated under the Food and Drugs Act (FDA). The order is a reminder that as tobacco companies morph into other product categories, health authorities need flexible and wrap-around powers to manage this transformation. The 'belt' of this Ministerial Order would be more secure if the department had the 'suspenders' of integrating the use of these products in its tobacco strategy.
The TVPA's purpose is well past its best before date
The TVPA's purpose was conceived in the 1980s and reflects the priorities and limitations of that era. Despite two major legislative overhauls, the intent and purpose of the federal tobacco law has not substantially changed in almost 40 years.
The evolution in the purpose of the Tobacco Products Control Act (1988), the Tobacco Act (1997) and the Tobacco and Vaping Products Act (2018) is shown below and can be downloaded here. The articulated purpose is limited to (a) preventing people from starting to use vaping or tobacco products and (b) providing information and countering disinformation on health risks of vaping or using tobacco products.
The tobacco industry has gone through substantial re-invention since that mandate was conceptualized, and Canadian support for stronger laws has steadily grown. Nonetheless, Parliament has not returned to its vision of how to manage tobacco and has yet to give Health Canada stronger powers and clearer directions on how to manage the problems caused by this industry.
The current law does not authorize Health Canada to adopt strategies to end tobacco use -- or even to promote smoking cessation. It sets no goals to reduce the number of people who smoke, or to reduce the injuries caused by these products. The vagueness of this legislated mandate is reflected in the minimalist documentation for "Canada's Tobacco Strategy". The narrowness of the legislative mandate means that Health Canada will have difficulty demanding that the industry pay for many of the costs that it causes.
Parliament has given Health Canada clear instructions in other laws
The Canadian Environmental Protection Act (CEPA) provides an example of an expanded and robust legislative purpose, and is a model for how the TVPA could re-invigorate the federal strategy. Like the tobacco law, CEPA was first passed by Parliament in 1988. It however, has been the subject of more detailed Parliamentary study. Parliament's instructions to CEPA are outlined in 3 mutually-reinforcing sections:
1)
DECLARATION. A 35-word legislative objective that gives the law broad application: "It is hereby declared that the protection of the environment is essential to the well-being of Canadians and that the primary purpose of this Act is to contribute to sustainable development through pollution prevention."
2) PREAMBLE. An 800 word expansion of the values behind the law, with 24 clauses outlining specific values.
3) DIRECTION. CEPA gives a dozen or more specific instructions to the federal government in how the law should be administered. Examples of these obligations include a mandate to ... "apply the precautionary principle ....", "protect the right of every individual in Canada to a healthy environment...", "take the necessity of protecting the environment into account in making social and economic decisions."
The CEPA approach can be adapted for tobacco control
Adapting the CEPA approach to modify the federal tobacco law would provide a number of benefits and could help:
- clarify the goals that should guide Health Canada's strategy
- expand the scope of activities that can be charged to the tobacco and nicotine industry
- provide instructions, guidance and support to health ministers in managing this long-standing health problem
- authorize the department to engage in activities to discourage the use of nicotine products other than tobacco- and vaping products.
- provide the public with transparency about the mandate of Health Canada
In this example, the core purpose of the federal tobacco law is simply stated: "The primary purpose of this Act is to contribute to the elimination of the harms to human and environmental health caused by commercial tobacco and nicotine products."
The suggested text instructs Health Canada on key aspects of addressing the harms caused by the tobacco industry. These include:
- Developing a nicotine reduction strategy with measurable objectives
- Fully implementing the Framework Convention on Tobacco Control
- Respecting and supporting traditional non-commercial tobacco use in First Nations
- Adopting measures to protect the environment with respect to tobacco and nicotine products
- Reduce health disparities with respect to the use of tobacco and nicotine products
- Apply the precautionary principle.
Filling a crucial gap
As it is currently written, the TVPA governs tobacco products (those made with tobacco) and vaping products (aerosolized nicotine) but has no power over novel nicotine products. Nicotine pouches are one example of tobacco industry products which are left unaddressed in the law, but there are others on the horizon.
Over the last year Philip Morris began selling its zero-tobacco LEVIA heat sticks in Czechia, and Romania and over the past month has launched them in the Netherlands. (They have signalled their intention to market them in Canada by registering the trademark). BAT also sells a tobacco-free heat stick. Both companies also have hybrid products (mixture of vaping and heated tobacco) in development or on the market.
It is not too early to anticipate that these products will be introduced to Canada, whether or not they are legal for sale under federal law. In its public documents (including the Departmental Plan) Health Canada has not made public whether or how it is analyzing the potential benefits or harms of these products being sold in Canada.
Our organization is among those calling for a fulsome revision and modernization of the federal law, but Health Canada has largely responded to these recommendations by ignoring them. The proposed revisions to the purpose and direction sections would give the department the responsibility and authority to initiate this process.
