BAT 'shakes things up' - adding haptics, tracking apps and more flagship stores to promote VUSE in Canada.

In the four years since vaping products were legalized for sale in Canada (May 2018), multinational tobacco companies have deployed a variety of tactics to persuade Canadians to purchase their pod-style vapes. Many of the ad campaigns which were described here earlier have largely disappeared, including television advertising, point of sale promotions, billboards and transit ads. Other tactics - like social media promotions, packaging and branding, free giveaways, and health reassurance campaigns-- remain, although some content has been changed after federal regulations on promotions came into effect in the summer of 2020.

This post looks at some of the new marketing elements BAT is engaging to encourage the use of its VUSE vaping, and how these relate to federal restrictions on vaping promotions.

1) The power of connectivity.

At the beginning of the month (May 1), BAT launched a brand new VUSE device, the VUSE ePod 2+. The novelty is not in the appearance of the device (it looks identical to the previous ePod 2) but in its engagement with the Internet of Things. 

This version of BAT's leading vaping device, the ePod is called the ePod 2+. Unlike the others, it includes Bluetooth technology to allow the device to be linked to the user's smart phone or computer. This is done using BAT's specially designed app, which allows the user to control the amount of cloud produced by the vaping device, as well as allowing the device to be tracked (electronically monitored) and remotely locked (electronically controlled). 

BAT/Imperial Tobacco's privacy policy identifies a number of ways in which this data will be collected by the company. In addition, for those using iPhones or other Apple products, the Vuse app can only be managed through another app - Nuviu, which acknowledges that usage data is collected, although not linked to identity. Another red flag about this development is that the company which manages the interface of vapers with the internet is as new as the vaping product it is monitoring: Nuviu Products Limited, was incorporated only a month ago (April 7, 2022).

2) Haptics: the science of touch

The new ePod 2+ has another novel feature -- it vibrates at certain moments to let the user know when the device has been turned on or locked/unlocked. The company encourages users to "Engage all the senses" -- adding touch to the look, smell, and taste of vaping. 

In this drug-delivery device, BAT is already using taste and smell (flavours), and sight (decorations and visual imagery) as reinforcers for the nicotine experience. Will music be next?

3) Branded storefronts and flagship stores 

Not quite two years ago (September 2020), BAT/Imperial Tobacco opened its first VUSE flagship store in Toronto. This March, the company informed the CCAA proceedings that three additional stores have been opened and that it plans to run 12 branded stores by the end of 2022. 

One of these stores opened in down town Ottawa this month (137 Rideau Street), with the same general interior layout as the Toronto store (shown below).  

These stores represent a major investment by the company (large enough to warrant disclosure to the insolvency court). Courts were told that the average lease deposit was $100,000 -- the retail value of 14,000 pods or 7,000 devices. With foot-traffic of only a handful of people an hour, the business case for these high-end stores is clearly not based on sales returns from those venues. 

4) Personalized decorations

Among the offerings at the Vuse store is the option to add personal decorations and engravings to the vaping device. Engravings can be designed by the consumer or executed by a VUSE representative. Those displayed in the stores demonstrate the impact of this personalized no-cost added-value. Other personalizations and decorations -- full colour 'skins' and ornamental rings are also available at a charge. 

VUSE X U  ​is the BAT trademark used to promote personalized design of devices "Make it truly yours in every way,"  consumers are encouraged by Instagram posts and other advertisements,  "with new personalization options from Vuse X U. Think colourful skins, adjustable rings and more engraving choices than ever before." 

5) Branded flavours

One of the ways in which BAT is responding to a potential curb on vaping flavours in Canada is by expanding its range of flavours that it expects will be permitted -- menthol-mint and tobacco. In two years the number of tobacco/mint/menthol flavours on offer by this company has grown from 2 to 13. 

In January 2020, BAT sold only one tobacco flavour in Canada for its ePod device (Tobacco Marvel), although a year later it had launched 3 more. All of these had the word "tobacco" in the flavour name. Today, the company offers  7 'tobacco' flavours, of which only two have tobacco in the flavour name. The flavours are:  Carmelina Mix, Morado Mix, Velvety Mix, Exotic Mix, Rich Mix, Golden Tobacco and Smooth Tobacco.

In January 2020, BAT sold only one mint flavour in Canada for its ePod device (Polar Mint), although a year later it had launched 2 more. Today, the company offers 6 mint flavours in Canada: Fresh Spearmint, River Mint, Forest Mint, Polar Mint, Smooth Mint, Cool Peppermint. 

Increasingly, these flavours are  'branded' with trademarked names that do not describe the flavour so much as provide it with an association that the company can market - 'river mint', 'forest mint', 'carmelina mix', 'morada mix', 'exotic mix'. 

The regulatory context

Although there is no public report of Health Canada raising concerns about these marketing efforts, it is not evident that they are all consistent with the federal Tobacco and Vaping Products Act or the Vaping Products Promotion Regulations. 

* The Flagship stores display a brand element (the VUSE trademark) in a way that they can be seen by young persons, although this is prohibited under section 2(1) of the regulations.

*  The designs and haptic features are likely to make the device appealing to young persons, although such features are prohibited by section  23.3 of the law.

In drafting the federal tobacco and vaping laws, the government chose a more permissive structure than for tobacco. All tobacco promotions in Canada are banned unless specifically permitted, but the same law permits all vaping promotions unless they are specifically prohibited.  This may have encouraged BAT to launch VUSE-branded stores, even though the federal government has previously required Philip Morris to remove the IQOS name from its Flagship stores for its heated tobacco product. 

Another challenge facing regulators is that vaping companies have more resources and fewer impediments to developing new marketing activities than governments have in responding to them. Ad campaigns can be launched within weeks, but it takes years for regulations to be developed. Many regulations do not survive the initial stages: Health Canada's plans to limit the way in which packaging and designs could be used to promote  vaping were made public in April last year, but were shelved last month.

New survey results show no decrease (and some areas of increase) in tobacco use and vaping

 On May 5, Statistics Canada released results of the third wave of the Canadian Tobacco and Nicotine Survey., in which almost 10,000 Canadians reported their use of tobacco and vaping products. (Top-level results of prior waves, with smaller samples, are available on Health Canada's web-site, and other analysis was reported here earlier). 

This blog presents graphs showing the results of this survey in the context of previous versions of Health Canada's tobacco use surveys.

Very little change overall

Statistics Canada reported very little overall change in vaping behaviour among Canadians as a whole, with mostly unchanged proportions of Canadians who had ever tried a vaping device, who were using one in the past month or who were using one daily. The one significant change they highlighted was the growing proportion of current vapers who were using daily -- up from 44% to 55% between 2020 and 2021.

No change in teen-vaping, but an increase in vaping among young adults.

The good news is that the increase in youth vaping observed after the market was legally opened 4 years ago has stalled. Over the past 2 years, this survey has not observed a statistically significant increase in vaping among teenagers or adults over 25

Vaping rates among young adults, however, have increased. Many of those who were in this age group this year would have surveyed as a teenagers when this survey began. Whether these are the same young people who would have been teenagers in previous surveys or whether they are Canadians who start to vape as young adults will not be known until the survey's full data set is released and analyzed. 

No decrease in smoking for any age group.

The CTNS did not observe a reduction (or increase) in cigarette smoking overall, nor for any age group.

Increased overall nicotine use among younger Canadians

The introduction of e-cigarettes in 2018 complicated the picture of Canada's progress against tobacco use. The age group which has most reduced smoking (adults over 25) is the group with the least use of e-cigarettes. For younger age groups, overall nicotine use has returned to levels higher than they were in 2018. 

Sources for data above:

CTUMS. Canadian Tobacco Use Monitoring Survey, 1999-2012:

CTADS. Canadian Tobacco Alcohol and Drug Survey, 2013, 2015, 2017. 

CTNS. Canadian Tobacco and Nicotine Survey, 2019-2020; and 2021. 

Health Canada trims its tobacco control sails

Last week two more documents were released by Health Canada which set out how the department plans to address the health consequences of tobacco use and vaping. The first is Health Canada's Forward Regulatory Plan for 2022-2024, and the second is the internal evaluation of Health Canada's activities, including management's response to the recommendations made by the evaluators. These, together with the Departmental Plan that was released in March, and revisions to Canada's Tobacco Strategy, released in February, reflect evolving federal priorities for this file.

This post reports on these four documents.

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THE FORWARD REGULATORY PLAN 2022-2024 

In the official plan made public last week, Health Canada reports that it is working on 5 new regulations under the Act:

• Tobacco Products Labelling Regulations  (planned since 2015, and expected this spring)
• Tobacco and Vaping Reporting Regulations and Vaping Products Reporting Regulations (planned since 2017 and now deferred until spring 2023)
• Order Amending Schedules 2 and 3 to the Tobacco and Vaping Products Act (Flavours) and Standards for Vaping Products' Sensory Attributes Regulation (planned since 2021, pre-published in 2021 and now awaiting finalization)
• Amendments to the Tobacco Access Regulations (Age Verification for Online Sales)  (Planned since 2021 and deferred from fall 2021 to winter 2023 )

The new regulatory plan includes 3 key changes from the plan released this time last year (available on the third-party legacy website frp.policygeek.ca):

• Health Canada has dropped plans for regulations on vaping product package and design features. These regulations, which appeared on last year's list, would have placed "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." They no longer are part of the department's plans. 
• Reporting regulations for vaping and tobacco manufacturers will be combined. ("They would merge the two sets of reporting regulations into a single one."). 
• The department is no longer indicating when it will finalize regulations on vaping flavours.  Federal measures to ban the sale of vaping liquids that have flavours other than mint-menthol or tobacco (and to prohibit additives other than a specified list associated with these flavours was pre-published in Canada Gazette last June, along-side a companion regulation for Cannabis products. Health Canada regularly provides timelines in its forward plan -- but for this regulation there is no hint on when the next steps will be taken. 

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THE 2022-2023 DEPARTMENTAL PLAN

The 2022-2023 work-plan made public by Health Canada contains a more ambitious list of federal actions on tobacco and vaping than those of recent years. (A comparison of the plans from 2018-2019 to 2022-23 can be downloaded here).

Among the activities identified for action in the coming year are:

• the regulatory developments listed above
• raising awareness and public education of the potential harms associated with vaping, particularly for youth;
• monitoring national trends in vaping and smoking and conducting public opinion research to better understand youth vaping.
• compliance and enforcement activities of websites, social media, retailers, manufacturers and importers. 
• modernizing the Pan-Canadian Quitline and developing voluntary standards for smoking cessation
• public education activities to raise awareness of smoking cessation resources.
• providing up to $3.5 million for "community organizations that undertake prevention, protection and/or cessation efforts vs. the use of tobacco and vaping products."

Health Canada highlights new activities
to address tobacco use and vaping.

The annual Departmental Plans trace an evolution in Health Canada's public approach to vaping products. In the first two years after legalizing vaping products, the department planned "work towards addressing the risks and potential benefits of vaping products." (emphasis added) After 2020, identification of "potential benefits" had been dropped and measures to "address the rapid rise in youth vaping" were added. This year the department also identifies activities to support cessation efforts by vapers. 

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THE DEPARTMENTAL EVALUATION

Following guidelines for all  federal departments, Health Canada's programs are periodically evaluated for their relevance, results and efficiency. The 5-year review of the department's tobacco control efforts was scheduled for 2021, and the report "Evaluation of the Health Portfolio Tobacco and Vaping Activities 2016-17 to 2020-21" was released on April 26, 2022.

This 57-page report is rich with detail, and offers an explanation of the structure and function of the department's work that has not previously been disclosed. In developing the report, the evaluators reviewed 500 internal files and conducted interviews with 46 key informants from which they developed their analysis and made their recommendations. 

It is in the management's "response and action plan"  to these recommendations that more detail is provided for activities over the next few years.

The recommendations with which Health Canada's management agreed. 

In the final version of the evaluation report, 4 recommendations are made. The "Management Response and Action Plan" (MRAP) shows agreement with all of these recommendations and the steps that will be taken to implement them.

#1  Communicate to partners and stakeholders Health Canada's action plan for the Department's contribution to achieving CTS goals and for addressing youth vaping.

* The department will establish interim targets for smoking prevalence in 2025 and 2030  by April 2023 and communicate them by September 2023.

#2. Enhance information technology systems and data analytics capacity to support program activities.

* Health Canada will migrate to a new IT system (National Integrated Compliance & Enforcement Management Solution (NICEMS - IP 626)) by September 2023. 

#3 Examine resource distribution between tobacco and vaping activities.

* Health Canada will establish "a risk-based approach for compliance and enforcement activities for tobacco products and vaping products" by December 2022.

#4 Review and update the Health Canada website to reflect the most up-to-date science and public health advice on health risks and benefits of vaping.

* Health Canada will review its website by last week (April 30) and will update it by August 31, 2022. A process for regular review will be established by the year's end.

The recommendations with which Health Canada's management did not agree.

An earlier draft of the evaluation report (dated August 2021) made 5 recommendations, two of which did not survive in the final report (dated December 2021). 

The first recommendation was reworded, to remove reference to the need for the department to have a "clear path" and "action plan" in order to reach the 5% prevalence target. This echoed an analysis by Les Hagen and Robert Schwartz that was published last fall (Is “less than 5 by 35” still achievable?) . 

This recommendation did not appear in the final evaluation, and was replaced instead with one that focused on communication, not planning. 

Original text: Recommendation 1: Develop a detailed action plan for achieving CTS goals and for addressing the rise in youth vaping. The goal of less than 5% tobacco use by 2035 is an ambitious target and Health Canada has not articulated a detailed action plan for reaching it. While the program does have some operational and performance measurement documents, they do not set out a clear path for reaching the long-term goal or include interim targets. With the rapid rise in youth vaping, it is also important for Health Canada to articulate a plan to address it. It would be helpful to develop a comprehensive action plan that includes short-, medium- and long-term targets for reaching the CTS goal and for youth vaping. Collaborating with key stakeholders in the development of this plan could bring helpful perspectives and create cooperation and buy-in from relevant groups.

Final text: Recommendation 1: Communicate to partners and stakeholders, Health Canada’s action plan for the department’s contribution to achieving CTS goals and for addressing youth vaping. Health Canada and its partners have an ambitious target of less than 5% tobacco use by 2035. In addition, youth vaping rates remain a concern. While Health Canada does have internal planning and performance measurement documents related to both these issues, these plans have not been communicated to stakeholders in an integrated way. As a result, some key stakeholders have the impression that Health Canada has not defined a coordinated, department-wide plan. Several key informants indicated that having knowledge of Health Canada’s plan could help inform their own work and the work of other groups, and help assess progress on the issues of tobacco use and youth vaping. In communicating this plan, Health Canada should coordinate with Health Portfolio partners and key stakeholders to facilitate cooperation and buy-in from relevant groups.

The fourth recommendation in the draft report related to the benefits of additional regulations, in line with the recommendations of the Chief Medical Officers of Health, was deleted altogether. 

Original text:  Recommendation 4: Building on the regulatory work currently underway, consider additional regulatory options to help address the rise in youth vaping, and support program objectives and needs. The program has already moved forward with many new regulations to help address youth vaping. As the program continues its regulatory work, attention should be given to explore recommendations for action related to vaping made by the Council of Chief Medical Officers in 2020. The program should also explore ways for regulations to further support compliance and enforcement activities, for example through a wider range of enforcement tools, as well as supporting research and surveillance activities through industry reporting.

Final text:  (No such recommendation is included)

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CANADA'S TOBACCO STRATEGY

In May 2018, Health Canada replaced the Federal Tobacco Control Strategy, which had been in place since 2001 with a revised Canada's Tobacco Strategy. In February 2022, that 2018 document was  officially archived, and replaced with new text on the department's website. 

The revised version is very concise -- with only 480 words it is less than half the length of the 2018 version (1,130 words) and one-sixth as long as the FTCS (3,150 words). As shown in a side-by-side comparison of the two texts (downloadable here), the approach - or its description - has evolved over the past four years:

• Harm Reduction is being re-framed. The term "harm reduction" has been dropped, although the concept of vaping product offering "a less harmful option than smoking" remains.
• Some regulatory directions have been dropped. There is no longer reference to plans to "further reduce the appeal and addictiveness of tobacco, including taxation, price-interventions, and the regulation of nicotine content."
• Working with Indigenous groups has been reworded and given higher profile.
• Reference to industry accountability has been dropped.

New results from surveys on vaping and tobacco issues.

This week two surveys were reported with information on nicotine-related behaviours.  One was by the B.C.-based Research Co, the other by the Toronto-based Centre for Addiction and Mental Health. 

This post reports on these results.

CAMH Student Survey

The  Ontario Student Drug Use and Mental Health Survey  (OSDUHS) [1]  has been conducted by CAMH every second year for an impressive 45 years. The Ontarians who were contemplating high school graduation when it was first in the field in 1977 will now be preparing for retirement! 

Questions on tobacco use were included in the first survey in 1977 and questions on e-cigarette use were added in 2015. Unlike many surveys which use past-month use as the main indicator (e.g. 'current smoking'), this survey focuses on use during the past 12 months.

As would be expected the questions on the survey and the manner of collecting data have evolved over the decades. The impact of COVID-19 restrictions triggered significant changes between 2019 and 2021 and resulted in a drastically reduced response rate. This cycle of the survey had the smallest sample size in the survey's history. The authors warn "because of the significant changes to the methodology in 2021, caution is warranted when comparing these estimates with those from previous OSDUHS cycles." 

In 2019 - 14,142 students in grades 7 to 12 from 992 classes in 263 schools in 47 school boards participated in the survey between November of 2018 and June 2019. [2] 

In 2021 -  2,225 students in grades 7 to 12 from 122 schools in 31 school boards completed the survey online (from any location at any time) between March and June 2021.

The survey found  significant reductions in vaping and dridnking, but not for using tobacco, cannabis or opioids

The caution on comparisons should be kept in mind when reviewing the decline in many indicators of concern. The survey found a statistically significant decrease in vaping and alcohol, but the drop in past-year cigarette smoking (from 5% to 4.1%) and cannabis use (from 22.0% to 17.0%) was not statistically significant. 

The survey found that many Ontario high school students think it is easy to get access to nicotine. 

Just over one-half (56%) of students reported it they thought it is "fairly easy" or "very easy" to get e-cigarettes, and just under one-half (45%) had that view for tobacco.

The survey paints an asymptotic approach to ending  youth tobacco smoking, and a return to higher rates of nicotine use.

Each successive wave of the OSDUHS since 1995 has shown a decrease in the percentage of students in grades 7 - 11 who have smoked in the past year, but the rate of decline is slowing.

Even with the reported declines in vaping behaviour, overall nicotine use in 2021 appears to be greater than it was in 2005, when 14.4% of  high school students smoked cigarettes (and alternative product use, like hookah and cigarillos, had not yet emerged as a measurable problem).

Historic data, shown below, is available for grades 7 to 11 for the years 1977 to 2017 and for grades 7 to 12 for the years 1995 to 2021. [3] 

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RESEARCHco

Research Co has conducted four waves of its survey on vaping:  in August 2018, October 2019, September 2020 and April 2022. The poll was not taken in 2021. The company describes the methods as follows: "Results are based on an online study conducted from April 16 to April 18, 2022, among 1,000 adults in Canada. The data has been statistically weighted according to Canadian census figures for age, gender and region. The margin of error, which measures sample variability, is +/- 3.1 percentage points, nineteen times out of twenty."

This survey found vaping on the rise.

. Like the Ontario student survey, it also identifies past-year behaviour instead of the more usual past-month use. The question asked is: "Have you used an electronic cigarette or e-cigarette (vaping) in the past 12 months?"). 

Research Co found an increase in e-cigarette use in 2022 when compared with 2 years earlier -  in all regions and for all ages except those over 55 years of age. 

Support for regulatory controls remains strong, albeit decreasing with time.

This survey has asked about public support for certain restrictions on vaping marketing, with some questions asked in several years and others asked on only one or two waves. In 2021 the survey found:

* Three times as many Canadians support as oppose restrictions on allowing e-cigarette manufacturers to make relative risk claims. In comparison with earlier survey waves, overall support for such restrictions was lower, largely because a greater number of respondents were "not sure" of their position. Excluding "not sure", in 2021, 74% of respondents agreed with restricting references to e-cigarettes as being  healthier. 

* Social acceptance of e-cigarettes has not much changed. Levels of agreement to the statement "I would  not consider dating a person who used electronic cigarettes" remain much as they were in 2019 (at about half of all respondents and 58% of those who stated an opinion).

* Twice as many support banning flavours as oppose. Levels of agreement to "Banning certain flavours of vaping products, such as cannabis and "confectionery”" were lower in 2022 than when assessed in 2020, but overall agreement among those with an opinion is two-thirds (67%).

* Support for advertising restrictions remains high.  Levels of agreement to "Restricting the use of testimonials and "lifestyle" advertising for vaping products" were slightly lower in 2022 than in 2020, when federal measures were just being implemented. In 2022, three-quarters (76.5%) of those with an opinion expressed agreement with this policy.

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Sources:

[1] CAMH. Findings from the 2021 Ontario Student Drug Use and Health Survey. https://www.camh.ca/-/media/files/pdf---osduhs/2021-osduhs-report-pdf.pdf

[2] CAMH. Detailed Findings from the 2019 Ontario Student Drug Use and Health Survey. https://www.camh.ca/-/media/files/pdf---osduhs/drugusereport_2019osduhs-pdf.pdf?la=en&hash=7F149240451E7421C3991121AEAD630F21B13784

[3] CAMH. Detailed Findings from the 2019 Ontario Student Drug Use and Health Survey. 1977-2017
https://www.champlainpathways.ca/wp-content/uploads/2018/01/Detailed_DrugUseReport_2017OSDUHS.pdf

[4] Tables for Poll conducted by Research Co. on Vaping in Canada - April 26, 2022
https://researchco.ca/wp-content/uploads/2022/04/Tables_Vaping_CAN_26Apr2022.pdf

[5] Tables for Poll conducted by Research Co. on Vaping in Canada - October 2020
https://researchco.ca/wp-content/uploads/2020/10/Tables_Smoking_CAN_27Oct2020.pdf

[6] Tables for Poll conducted by Research Co. on Vaping in Canada - November 2019
https://researchco.ca/wp-content/uploads/2019/11/Tables_Vaping_CAN_13Nov2019.pdf

[7] Tables for Poll conducted by Research Co. on Vaping in Canada - November 2018
https://researchco.ca/wp-content/uploads/2018/11/Tables_Vaping_21Nov2018.pdf

The First Four Years: The legislative review of the Tobacco and Vaping Products Act.

May 23, 2022 marks four years since Royal Assent was given to the legislation that turned the Tobacco Act into the Tobacco and Vaping Products Act. On that day, the Minister of Health is obliged by law to submit to both the Senate and the House of Commons a report on the "review of the provisions and operation of this Act."

This is no minor obligation placed on the Minister. It is one of only two statutory obligations for specific actions by the Minister under this act (the other one, regarding public disclosure of information is not in force until the department prepares regulations). There are significant potential consequences for non-compliance: if the Minister fails to conduct a review or fails to submit it to Parliament, h/she is liable to a $25,000 fine (section 3 and section 48). 

This was not a voluntary undertaking of the government. Provisions for this 'legislative review' were not included in the bill as it was originally submitted to Parliament, but were introduced by (opposition) Senator Judith Seidman during the Committee's final clause-by-clause discussion on April 13, 2017. 

As Senator Seidman explained, a mandatory report from government was a way to protect Canadians in the face of many unknown issues surrounding the legalization of vaping products. 

 "Under the circumstances, with so much science unknown, we don't know if vaping is effective for cessation. We hear a lot of dual usage. We don't know if it will renormalize smoking for young people. We don't know what kinds of toxins vapors are really exposed to. We do not even know how to measure a lot of those toxins. We're not really sure about second-hand exposure and how to measure that.

All things considered, everything is so unknown that I really feel it's important to keep tabs on this as parliamentarians. We're opening the door to something. We need to be able to feel secure in ourselves that we're doing the right thing and that we're able to monitor."

Legislative reviews are a new tool for accountability and program improvement.

The requirement for a ministerial report to Parliament on significant issues of public concern is not unique to tobacco. The Cannabis Act, which was studied by Parliament around the same time as the TVPA, also had reporting requirements introduced during clause-by-clause study. That review is required to be presented to Parliament in March 2023. 

Statutory reporting requirements are an emerging tool for federal government accountability and in recent years have been included in many different policy areas. Among these are  requirements to report on progress towards climate change goals (due the end of 2023), on laws aimed at reducing the number of Indigenous children in care ( due after 2025), on the state of palliative care (due 2024), on food safety (after 2024). 

One Canadian province has included a mandatory review of its tobacco laws for over a decade. When Quebec adopted a new Tobacco Act in 1998, it included obligations (which have been continued in section 77) for the Minister to present an implementation report by October 2005 (176 pages), October 2010, and November 2020 . 

The Quebec reports provide legislators with information on the results, as well as an explanation of areas where reforms are needed.  They have served to accelerate legislative change.  

In the conclusion to its most recent report, for example, the Quebec Ministry of Health signals that actions (including legislative change) are needed to address problems that challenge governments across Canada. Among the concerns raised by the ministry are the persistence of disparities in tobacco use, the incentives that manufacturers give to retailers to promote sales, the growing similarities between the vaping and tobacco markets, and others. It recommends that measures be expanded to address price and accessibility, to enhance the power of enforcement officials, more controls on vaping products, and others.

In launching a consultation on its legislative review, Health Canada has tightened the focus of its review. 

Last month, Health Canada released a discussion paper and opened a 5-week consultation on the legislative review. The consultation period ends at midnight April 27, 2022 -- less than a month before the statutory deadline for the department to present its report to Parliament. 

Through the discussion paper the department confirmed that it is intending to provide Parliament with a partial review of the "provisions and operations of the act", and will focus only on 5 topic areas. For each of these, public views are sought with reference to 1) the sufficiency of current measures, 2) the availability of additional measures and 3) the state of evidence to support additional action. These topics are: 

• Protecting young persons and non-users of tobacco products from inducements to use vaping products
• Protect the health of young persons and non-users of tobacco products from exposure to and dependence on nicotine that could result from the use of vaping products
• Protecting the health of young persons by restricting access to vaping products
• Preventing the public from being deceived or misled with respect to the health hazards of using vaping products
• Enhancing public awareness of health hazards

Apparently excluded from this review will be a review or report on "provisions and operation" of legislative measures addressing tobacco use, adult vaping, enforcement, industry reporting, product regulation, etc. 

The public consultation has triggered yet another skirmish with industry front-groups

The public consultation is not a required step in the legislative review, although such consultations are required for other policy developments. 

This is the fourth federal consultation on youth-related vaping issues in the past 14 months (the others were on taxation, ending June 2021; flavour restrictions, ending September 2021, and nicotine concentration, ending March 2021). Other consultations have taken place since the TVPA was introduced -- including a 2019 consultation on Reducing Youth Access and Appeal of Vaping Products, consultations on Vaping Product Labelling in 2019, consultations on the Regulation of Vaping Products in 2017 and targetted consultations on relative risk statements in 2018. At this point it is not obvious that the department will be provided with information that is not already at hand as a result of these previous exercises.

Predictably, Rights4Vapers (the group led by vape store owners and  whose campaign against flavour restrictions was funded by the head of the Vaping Industry Trade Association) is driving submissions to the consultation process. This agency puts great emphasis on the numbers of responses it generates, and uses the results of these mobilization efforts to challenge public health regulations.   

The legislative review of the TVPA will set important precedents.

The TVPA is one of the first modern laws for which a legislative review must be tabled in parliament. How the Minister of Health addresses his responsibilities under the Tobacco and Vaping Products Act will set the standard for the same obligations under the Cannabis Act. How Parliament responds if the Minister files a partial or late report (as is signalled in the discussion document) will similarly set the precedent for other legislative reviews.

An opportunity not to be missed.

The new requirement for a legislative review of Canada's tobacco law has enormous potential to improve the lives of Canadians by accelerating the end of the tobacco epidemic and its new variant, vaping. Providing Parliamentarians and the public with a detailed and honest accounting of the challenges facing government on this important file and a vision for legislative and policy enhancements could be the springboard for the next generation of tobacco laws in Canada.

• Physicians for a Smoke-Free Canada submission to Health Canada's consultation on the legislative review can be found here. 

Finland and China break new ground on regulating the vaping market

Last week two countries advanced major reforms to regulatory controls on the vaping market. On April 13th, Finland finalized changes to its Tobacco Act, a day after China finalized its first regulatory standard for e-cigarettes. This post describes some of the measures these governments are putting in place.

Finland is set to be the third country to require plain packaging of e-cigarettes

Israel pioneered
plain packaging
of e-cigarettes

In just over a year, on May 1, 2023, all brand images and logos will be prohibited on vaping product packaging in Finland, and the health ministry says that more controls will be made by regulation ( "separate provisions on the technical details related to the layout of packages and products will be issued by a decree.")

 Finland is also imposing restrictions on the shape of vaping liquid containers ("The refill container must not differ from other refill containers in shape, color, surface, color of the label or other appearance, and the appearance of the refill container must not promote the sale of the product.")  

Israel was the first country to require plain packaging of vaping products, implementing the measure in early 2020. Denmark passed legislation later that year, which comes into force this October. (The Netherlands has initiated legislation which is not yet finalized).

These are measures that are not currently in development in Canada. Although Health Canada's Forward Regulatory Plan that was released this time last year indicated regulations were being developed to "place certain limits on what promotional elements can appear on vaping product packages", this initiative was dropped in this year's Departmental Plan.

There are other measures that Finland has put in place which are not yet established in Canada. These include:

• Finland has banned flavours other than tobacco since 2016 (the first among a growing number of countries to do so)
• Finland requires retailers to implement "self-monitoring" plans to prevent sales to youth.
• Manufacturers must provide pre-notification 6 months before introducing products to market. 
• Manufacturers of cigarettes and e-cigarettes must pay regulatory fee based on sales volume.  (joining a growing number of countries which are now requiring this measure) 

China pioneers technical standards for e-cigarette manufacturers.

Although the e-cigarette is widely accepted as a Chinese innovation, it is only recently that the Chinese government has brought the e-cigarette market under public authority. Last November e-cigarettes were brought under the control of China's state tobacco monopoly. Soon afterwards consultations were launched to inform the development of the rules that would be imposed on this newly-regulated industry. Draft regulations were circulated at the World Trade Organization in early December, with a second consultation initiated in March. The final version (GB 41700-2022) was adopted on April 8 and comes into force on October 1, 2022. (The formal version is not yet downloadable, but photocopies are circulating on the web).  

China is adopting some product standards that are already in place in many other countries. These include:

• a maximum concentration of 20 mg/ml of nicotine (now in place in 41 countries)
• a ban on flavours other than tobacco flavour (adopted by 5 other countries)
• a ban on additives that a mutagenic, carcinogenic or reproductive toxins (in place in the EU)
• reporting and labelling requirements
• ban on colouring ingredients in vaping liquids

It is also introducing measures that are less common elsewhere, including:

• a ban on e-cigarettes that do not contain nicotine
• a ban on refillable e-cigarettes
• a maximum of 200 mg of nicotine per e-cigarette
• maximum concentration of certain compounds (e.g. heavy metals, arsenic, 2,3-Butanedione)
• a maximum level of nicotine that is released per puff 
• a maximum temperature for aerosolizing liquids (a stunning 350 degrees celsius!)
• a ban on additives that do not appear on the "white list" of 101 chemicals 
• a ban on additives that increase health risks
• a ban on additives that are not technically necessary or that are used in greater quantity than required

To implement some of these requirements (such as maximum nicotine release per puff and maximum temperatures), Chinese authorities have established testing protocols and standards, which are included by reference or as appendices to the new standard.  

Three different countreis with three different "white lists" for additives.

Although many countries have prohibited the use of certain categories of additives, such as colouring agents or reproductive toxins, only a few have moved towards prohibiting all additives other than those which are specifically permitted for us.

Health Canada is a proponent of this approach. In its proposed flavour restrictions, published 10 months ago, it identified 82 exempted flavouring additives (40 for tobacco-flavours, and 42 for menthol-mint flavours) and proposed to prohibit all others. The Netherlands National Institute for Public Health and the Environment (RIVM) also promoted this approach, and proposed a list of 23 flavouring additives that could be approved for use as part of its proposed ban on all non-tobacco flavours. The "White List" in China's regulation (currently accessible in the draft version of the regulation) includes 101 chemicals. There is only a modest overlap in these lists: of the 182 chemicals identified in these lists, only 22 are identified by more than one country. (A combined list can be accessed here).

With its October 1, 2023 implementation date, it appears likely that China will be the first to implement a flavouring ingredient "white list".  The Netherlands has indicating that its flavour restrictions are delayed until at least January 2023 and Health Canada has not made public its implementation timeline.

A first ban on open systems and emission rates

Last  year, in its 8th report to the World Health Organization, the WHO study group on tobacco product regulation (TOBReg) recommended that governments should prohibit e-cigarettes "in which the user can control device features and liquid ingredients (that is, open systems)" and those "with a higher abuse liability than conventional cigarettes, for example by restricting the emission rate or flux of nicotine." China appears to be the first country to put such restrictions into effect. 

How the new federal tax on vaping products will affect prices (and affordability)

Three hundred and fifty-four days ago, a budget was presented to the Canadian parliament that proposed  tax on vaping products to be applied in 2022, [1] and invited  "input from industry and stakeholders on these proposals to help ensure the effective imposition and collection of excise duties on vaping products." 

Yesterday the details on this tax were made clear in the 2022 federal budget [2] The budget was accompanied by a ways and means motion with the necessary changes to the Excise Act, effective October 1, 2022. [3]

This post looks at the evolution of this tax proposal and at the impact it will have on some vaping liquid prices. 

Finance Canada has adjusted the tax to increase the rate for larger containers.

In 2021 the federal proposal read as follows: "The proposed framework would impose a single flat rate duty on every 10 millilitres (ml) of vaping liquid or fraction thereof, within an immediate container (i.e., the container holding the liquid itself). This rate could be in the order of $1.00 per 10 ml or fraction thereof, and the excise duty would be calculated and imposed based on the volume of the smallest immediate container holding the liquid."

In 2022, the proposed tax read as follows: "Budget 2022 proposes to implement the previously announced excise duty on vaping products, effective as of October 1, 2022. The proposed federal excise duty rate would be $1.00 per 2 ml, or fraction thereof, for containers with less than 10 ml of vaping liquid. For containers with more than 10 ml, the applicable federal rate would be $5.00 for the first 10 mL, and $1.00 for every additional 10 ml, or fraction thereof."

The difference can be illustrated examining three product categories:

• e-liquid pods for devices like JUUL,  VUSE or STLTH, 
• disposable devices like Allo, 
• e-liquid bottles designed to be used in refillable containers or tanks. 

For all products, the tax is applied on the basis of the volume of liquid:  the cost of the unit, the strength or type of nicotine is not a factor. Pods (which are often sold in packages of 2 or 4 units) will bear a tax of $1 per pod (unchanged since 2021). Mid-volume disposables will bear a tax of $1 per 2 ml (higher than last year). Containers with more than 10 ml will be taxed at a considerably higher rate than proposed last year (because of a minimum $5 per 10 ml).

Provincial governments are invited to participate and share 

The federal government is continuing to extend an offer to provinces to participate in a joint vaping tax program in which the tax revenues would be split. Importantly, this is identifying as something to be managed to achieve public health goals  ("The overall tax burden on vaping products will be regularly reviewed to ensure that important public health objectives are being met."). This cooperative approach is currently in place for cannabis, as seen in the Quebec-Canadian agreement here, but has not been negotiated for tobacco.

The new tax will recover an estimated $10 to $50 per month from Canadian vapers.

There is wide variability among devices and users, which makes it difficult to compare the price of a “unit dose” of nicotine from vaping with those from tobacco. Nonetheless, studies of vapers have found typical consumption of 22 ml to 63 ml per week (3 ml to 10 ml per day),[4] with daily JUUL users consuming 10 pods per month.[5] A JUUL pod has been found to deliver to the human body the equivalent amount of nicotine as a package of cigarettes.[6] Health Canada’s surveys report that spending on devices and liquids averages $53 for devices-components each month and $52 for liquids,[7] giving an average daily cost of about $3.25.

On the basis of those reports, the proposed tax will trigger a monthly increase in cost of:

• $10 for the typical JUUL user [5]; $30 for someone who consumers 1 pod per day 
• $13 (for 3 ml/day user) to $50 (for 10 ml/day user purchasing 60 ml bottles) [4]

Finance Canada predicts that the vaping tax will generate $145 million in revenues in a full calendar year, or roughly $100 per year for each of Canada's 1.4 million vapers. In addition to this specific (volume-based) tax, the government will also receive revenues from the ad valorem (percentage) goods and services tax.

Even in provinces which currently tax vaping products, these will remain much cheaper than cigarettes

Currently 4 provinces impose taxes on vaping liquids.[8] Three impose ad valorem taxes:  British Columbia (20% in lieu of PST), Newfoundland (20% in addition to HST) and Saskatchewan (20% in lieu of PST). One imposes a specific tax (Nova Scotia, $0.50/ml).  

The imposition of an additional federal tax will NOT make e-liquids more expensive than the equivalent volume of cigarettes. 

This can be illustrated for two product categories - pre-filled cartridges (eg 1.9 ml VUSE cartridge, $7) and bottled e-liquids (eg 30 ml DVINE, $15). The comparison for a  VUSE cartridge is made with the price of a package of 20 cigarettes, based on a combined whole-sale retail cost of $3.80 and taxes currently in place.[9] The cost of a bottle of 30 ml liquid is compared with 3 packages of 20 cigarettes. 

Even in Nova Scotia and Newfoundland, which have the highest taxes on vaping products, the price of a package of cigarettes is more expensive than a pre-filled cartridge. Because Nova Scotia also implements a specific tax, the pattern is somewhat different for a bottle of 30 ml. Quebec has dramatically lower tobacco taxes than other provinces, which results in it having the smallest gap between capsules and tobacco prices.

Even after these taxes are imposed, e-liquids will remain affordable for too many young Canadians

Minimum wages ranging from  $11.81 to $16 across Canada. Using the estimates of post-tax prices for vaping pods and vaping liquids, it will take a minimum wage earner between half an hour and an hour to earn enough to purchase a taxed e-liquid pod, and between 3 and 6 minutes to purchase a ml of e-liquid.

References

[1] Government of Canada. Federal Budget. April 2021. 

[2] Government of Canada. Federal Budget. April 2022. 

[3] Notice of Ways and Means Motion to amend the Excise Act, 2001 and Other Related Texts

[4] Smets, J When Less is More: Vaping Low-Nicotine vs. High-Nicotine E-Liquid is Compensated by Increased Wattage and Higher Liquid Consumption. International Journal of Environmental Research and Public Health, 2019.

[5] Leavens, E et al. JUUL electronic cigarette use patterns, other tobacco product use, and reasons for use among ever users: Results from a convenience sample. Addictive Behaviours, 2019.

[6] Prochaska, J. et al. Nicotine delivery and cigarette equivalents from vaping a JUUL pod. Tobacco Control. 2021.

[7] Environics. Vapers Online Survey to Measure Attitudes and Behaviours Regarding Vaping Over Time. POR 098-19

[8] Physicians for a Smoke-Free Canada. At-a-glance: Provincial restrictions on vaping products. January 2022

[9] Physicians for a Smoke-Free Canada Taxes on cigarettes in Canadian jurisdictions. April 2022