Health Canada moves to ban menthol!

Usually Friday afternoons are when governments try to bury news. So it is a bit of a head scratcher that it was at a TGIF moment that news leaked out that the federal government was proposing to ban menthol in cigarettes, blunt wraps (used to smoke marijuana) and many cigars.

The move came in the form of a proposed regulation published in the Canada Gazette, only a day after Prince Edward Island confirmed that it would be the sixth province to ban menthol.

It is a 180 degree reversal from the position taken by the previous federal government. Barely 4 months have passed since a federal additive ban which expressly exempted menthol came into force last December.

Tobacco companies have resisted the ban by filing lawsuits, and are likely behind the objections being raised at the World Trade Organization in response to the bans introduced in Nova Scotia and elsewhere. 

It was after the provinces moved forward with their measures that the companies defiantly launched newer styles of menthol cigarettes in Canada. (The click-menthol "Next" brand shown below was launched by Philip Morris last year. Imperial Tobacco has also launched click-menthol products)

This industry provocation is all the more reason for the federal government to step up its action. It is all the more reason for us to applaud their actions.

Bill Casey holds a private meeting with Big Tobacco. Should we care?

If the president of a tobacco company has a private meeting with the chair of a parliamentary health committee, is there a breach of Canada's treaty obligations to protect public health from tobacco industry interference?

This question is more than hypothetical after Imperial Tobacco Canada, filed a communication report with the Office of the Commissioner of Lobbying, stating that a meeting was held between Imperial Tobacco and Bill Casey, who is a Member of Parliament from Nova Scotia and also the chair of the House of Commons Health Committee.

The meeting took place on March the 8th, and was reported to the Commissioner's office on April 13th by Jorge Araya, the "most senior paid officer" responsible for providing such reports.

Whether or not it was Mr. Araya or some other representative of the company who actually met with Mr. Casey need not be disclosed.

Bill Casey, M.P. 

Nor is the company (or Mr. Casey) required to disclose more information than what is demanded in a drop-down menu choice of very broad topics. On that day, apparently, the "communication" involved "health". Nothing more has been made public

Mr. Casey was not the only Member of Parliament to grant a hearing to Imperial Tobacco representatives this spring, but he was the only one for whom "health" was the primary agenda item. (Communications reports were filed by Mr. Araya with respect to meetings with 10 other members of the governing Liberal party: Marc Miller, Bernadette Jordan, Pat Finnigan, Michel Picard, Sean Casey, T J Harvey, Darell Samson, Frank Baylis, Wayne Easter and Bill Blair. "Justice and Law Enforcement" and "Taxation" were the primary topics of these meetings.)

The FCTC Obligation

Article 5.3 of the Framework Convention on Tobacco Control imposes the following obligation on Parties to the treaty:

In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.
Guidelines to help interpret this somewhat vague obligation were adopted in an early Conference of the Parties. These guidelines note the fundamental and irreconcilable conflict between the tobacco industry's interests and public health, and recommend that the formulation of public policy on tobacco be protected from the industry to "the greatest extent possible" and that any interaction with the industry is "accountable and transparent."

Differing views on Canada's implementation of Article 5.3

In its most recent (2014) report regarding treaty implementation, the Canadian government took the view that (a) it was not bound by the guidelines, and (b) public health policies were protected from tobacco industry interference. (Their complete response is pasted below.)

While Parties to the FCTC are not bound by the Guidelines, Canada has reviewed the Article 5.3 Guidelines in relation to the Canadian policy, legal and constitutional context. Canada has adopted administrative measures, such as Health Canada's policy of not partnering with the tobacco industry on tobacco control programming....

Generally, in Canada the primary channels of communication between governments and the tobacco industry are limited to (i) technical discussions in regard to both health and tax-related regulations and (ii) litigation-related responses."

Non-governmental organizations, including our own, found that this was one of the few areas of the FCTC where implementation in Canada did not meet the minimum standards. In the Shadow Report on FCTC implementation prepared by the Global Tobacco Control Forum in 2010, we found that Canada had failed to implement at least 13 aspects of the Article 5.3 guidelines.

A Grey Zone and a policy void

It is not at all clear that parliamentarians would be subject to the obligations of the FCTC, which focuses on the executive branch of government more than its legislative arm.

Mr. Casey, after all, is a back-bencher and a member of parliament accountable to his constituents. He was elected as chair of the Commons Health Committee by his legislative peers. In theory, he is not appointed by government, and is not an agent of government. 

The reality, of course, is a little more nuanced. It would be disingenuous to claim that committee chairs are completely independent of the executive branch of government. 

Moreover, the committee that Mr. Casey chairs has a particular role to play in the development of tobacco control policies, given that regulations under the Tobacco Act are automatically referred to it for approval. These would likely include any regulations to fulfill the government's pledge to implement plain packaging.

It is highly likely that Mr. Casey has never heard of the FCTC, let alone Article 5.3. The industry may have mobilized well ahead of the capacity of the new government to fill in the gap left by the previous government's decision to dismiss concerns about industry interference. 

A sunnier way forward

It may be that Members of Parliament who have specific responsibilities for health policy face no prohibition on private meetings with tobacco industry officials. But they are certainly under no obligation to agree to such meetings.

Those who make such judgement calls could only benefit from some guidance. If Imperial Tobacco can arrange a meeting to discuss "health" with Mr. Casey, hopefully the health ministry can similarly be scheduled for a discussion about the "tobacco industry".

Canada's 2014 report on its implementation of Article 5.3 Protection of public health policies with respect to tobacco control from commercial and other vested interests of the tobacco industry 3.1.2 Have you adopted and implemented, where appropriate, legislative, executive, administrative or other measures or have you implemented, where appropriate, programmes on any of the following:  3.1.2.1 – protecting public health policies with respect to tobacco control from commercial and other vested interests of the tobacco industry? Yes  3.1.2.2 – ensuring that the public has access, in accordance with Article 12(c), to a wide range of information on tobacco industry activities relevant to the objectives of the Convention, such as in a public repository? Yes 3.1.2.3 If you answered “Yes” to any of the questions under 3.1.2.1 or 3.1.2.2, please provide details in the space below    While Parties to the FCTC are not bound by the Guidelines, Canada has reviewed the Article 5.3 Guidelines in relation to the Canadian policy, legal and constitutional context. Canada has adopted administrative measures, such as Health Canada's policy of not partnering with the tobacco industry on tobacco control programming.  Lobbying at the federal level in Canada is regulated under the Lobbyist Registration Act. It is illegal for corporations of any kind to contribute to political campaigns for electoral purposes. Some provinces also regulate lobbying. Furthermore, the Lobbyist Registration Act introduced a requirement that consultant lobbyists (ie: tobacco related activities) file a return with the Commissioner of Lobbying if they communicate with a designated public office holder under certain conditions. This registry can be searched by anyone through a publicly-accessible website.  Health Canada has discussed the Article 5.3 Guidelines with its federal partner departments and with relevant departments of provinical/territorial governments who are collaborators in the Federal Tobacco Control Strategy (FTCS). Generally, in Canada the primary channels of communication between governments and the tobacco industry are limited to (i) technical discussions in regard to both health and tax-related regulations and (ii) litigation-related responses.  In Canada, many aspects of the tobacco industry's health policy, business and promotional activities are matters of public record. In addition, civil society organizations keep close track of tobacco industry activities and maintain web sites, publications etc for this and related purposes. The tobacco industry must report to government on its research and promotional activities pursuant to these Regulations. Public access to information is governed by the Canadian Charter of Rights and Freedoms, Access to Information & Privacy Act, and the common law as it relates to confidential business information.

In case you thought Big Tobacco was on its way out...

Big tobacco still makes big money 

Big tobacco still makes big money, according to Shelly Banjo of Bloomberg News. She reported on March 15, 2016:

The three big U.S.-based tobacco companies -- Reynolds, Altria, and Philip Morris -- returned 103 percent, 87 percent, and 34 percent to investors over the past two years, respectively, compared to a 14 percent return on the S&P 500. 

Mergers and greater cooperation among supposed competitors are cited as some of the reasons for greater profitability. It also seems that that price of gasoline is important for cigarettes sales. The price of gas is dropping, so consumers have money left over to run in and buy a pack of cigarettes at the convenience store, now so conveniently attached to nearly every gas station.

Safer tobacco products, or just more tobacco products? 

Some hold out hope that e-cigarettes and other non-combustible tobacco products might one day replace burning tobacco as less hazardous nicotine delivery devices. Maybe it will happen some day, but the tobacco companies are pursuing a much different strategy and piling up the profits while doing so. It seems that electronic cigarettes are not so much displacing regular cigarettes in the marketplace as they are being added on as one more addictive product. Kenneth Shea, a Bloomberg market analyst figures they are giving consumers more occasions to consume tobacco and that dual use of e-cigarettes and conventional cigarettes is common. This is confirmed by surveys reported by Action on Smoking and Health in the United Kingdom. 17.6% of current UK smokers also use e-cigarettes.

The reasons they give for doing so are given by the blue bars in the following graph.

 

Tobacco companies do not want to improve public health; they want to make money (Surprise! Surprise!)

They appear to already be profiting from dual use of conventional cigarettes and e-cigarettes.Their plans, previously revealed during investor day presentations in 2015, are being effectively carried out. For example, British American Tobacco (BAT)( www.bat.com) wants to be the “world’s best at satisfying consumer moments in tobacco and beyond.”

More ways for tobacco companies to make more money in the future 

If tobacco companies continue to be left to their own devices and if dual use of combustible and non-combustible tobacco continues to increase, continuing profitability of tobacco companies can be expected.
A new heat-not-burn tobacco product called iQOS developed by Philip Morris is currently available for sale in Italy, Switzerland and Japan. It might turn out to be another money-maker. BAT has similar products in development. BAT has a number of non-combustible tobacco products already on the market or in development. It refers to them collectively as “Next Generation Products” (NGP). One might wonder how such products will be regulated. Instead of wondering about it, BAT is setting about to create the regulatory environment it desires. As told to its investors in 2015, BAT is “shaping future regulation.”

In seeking “marketing and distribution freedoms that enable category growth”, “product safety standards that become the benchmark of industry & regulators”, and “fiscal policies that are aligned with the risk spectrum”, will BAT run afoul of Article 5.3 of the Framework Convention on Tobacco Control (FCTC) which states:

 “In setting and implementing public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.” 

Most countries, including Canada have, at best, a spotty record in upholding Article 5.3 and keeping the tobacco industry out of influencing and shaping tobacco control policies. With BAT already engaged in “shaping future regulation”, how well will governments do at keeping the tobacco industry fox out of the public health henhouse?

Many people and organizations are looking to profit from the looming legalization in Canada of marijuana for recreational use. Organizations as diverse as medical marijuana suppliers, big drug store chains and the Ontario government have all expressed an interest in claiming a piece of the potential legal marijuana trade. So far, the Canadian tobacco industry has not publicly declared any interest in the marijuana business.

Canada’s Liberal government announced in the December, 2015 Throne Speech that it intends to “legalize, regulate and restrict access to marijuana.” Given Big Tobacco’s appalling track record on public health protection and continuing desire to maximize profits, governments would do well to think long and hard about what role, if any, tobacco companies might be permitted to play in the legal-but-regulated marijuana business.

Important Progress in France and Quebec

Two important advances were made this week in tobacco control laws in key members of La Francophonie.

On Wednesday, the French parliament adopted a law to require plain packaging of cigarettes, becoming the fourth country to put this measure into law (after Australia, Ireland and the United Kingdom).

And this Thursday morning, the Quebec legislature gave unanimous consent to Bill 44, An Act to bolster tobacco control, which contains a number of regulations that raise the bar for public health.

The bill brings controls on smoking in Quebec up to the level currently in place in other provinces (no smoking in cars with children present, or on certain outdoor public places, like patios or near doorways of public spaces).

It also imposes new regulatory restrictions on cigarette marketing, including:
* a ban on flavours, including menthol (to come into force 6 months after Assent)
* an end to bonuses or other incentives paid by manufacturers to retailers
* a minimum size for warnings, which will have the effect of removing from the market smaller packages for slim cigarettes. (The reduction in warning size for these packages is shown below)

One of the most encouraging aspects of the Quebec bill is the breadth of support that it received in the National Assembly, whose members further strengthened the law that was proposed by the Minister of Health, Mme. Lucie Charlebois.

A special shout-out is warranted for the Minister, for her opposition counterpart, Mr. Jean François Lisée, and for our colleagues in the Quebec health community who encouraged their efforts.
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E-Cigarettes: BAT seeks to infuence a federally abandoned regulatory field

Although e-cigarettes are more and more frequently seen on Canadian streets, from a policy-setting point of view, they seem to have dropped from view.

• None of the political parties addressed them during the current election campaign.
• None of the health groups included them in their requests to parties (at least among those that are public or known to me).
• There was virtually no media coverage during the election period.
• And certainly the Minister of Health and Health Canada were entirely mute on what they thought should be done. As they have been for more than six years. 

A policy void that has lasted 6 years - even in defiance of parliamentary directives. 

The sale of electronic cigarettes which contain nicotine is not legal in Canada. This was made clear by the government in an advisory issued in March 2009.

Whether or not this is a good policy is a question of debate, although the debate in Canada has been less vigorous and more civil than in other quarters. (Our own position in favour of tying increased e-cigarette use to decreasing use of combustibles was forwarded earlier this year.)

Provincial governments grew antsy with the lack of federal action, and pushed the Minister of Health for action during their annual meeting in the autumn of 2014. Her response was to punt the issue to a parliamentary committee for review.

The Standing Committee of the House of Commons began its review with an appearance by Health Canada officials almost exactly a year ago. Their appearance was a masterful display of the skill of saying nothing. Sadly, the much greater talents of the individuals involved in developing solid regulatory responses to health threats was not allowed to be shown. Another example of the muzzling of scientists, perhaps.

On March 10th, the Standing Committee on Health presented its report Vaping: toward a regulatory framework for cigarettes, and requested that the government respond to its 14 recommendations within the 120 days as required by the House Standing Orders.

109.  Within 120 days of the presentation of a report from a standing or special committee, the government shall, upon the request of the committee, table a comprehensive response thereto, and when such a response has been requested, no motion for the concurrence in the report may be proposed until the comprehensive response has been tabled or the expiration of the said period of 120 days.

The deadline set by this requirement was after the House had risen for the summer and the current parliament had effectively been dissolved. Nonetheless, the parliamentary requirement for a response was valid, and the Ministry should have tabled a response on July 21st, the date set for 'adjournment tabling.'

Health Canada officials would almost certainly have prepared a response for this date, as the decision to act in contempt of a parliamentary requirement is (hopefully) not one that would be taken lightly within government departments.

Nonetheless, the government's response to the committee's strong desire for regulations was never tabled.

We will never know what the department's recommendations were. The views of the department are considered "advice to the minister" and will not be available to the public. The recommendations of Health Canada's policy experts are thus still literally a state secret.

A policy void that has lead to a vibrant illegal market

There are three large markets for illegal inhalable products in Canada:

1. the market for illegal cigarettes (BAT estimates that 1 in 5 cigarettes sold in Canada is on the black market). These generally are not visible in formal retail environments, but are sold under the counter or through informal channels
2. the marijuana market, which has recently surfaced at a retail level in British Columbia.
3. the e-cigarette market, which is supplied through informal and formal retailers, including public retail fronts. Established convenience stores and other retail chains have generally not participated.  

The open marketing of marijuana and e-cigarettes is made possible by enforcement decisions of Health Canada and others to effectively turn a blind eye. Letters may be sent. Threats may be made. But no one shuts the storefronts down.

A policy void that is not in tobacco industry's interests

All of the multinational tobacco companies are scrambling to develop next generation products. In their view, there is no one e-cigarette, but rather a suite of innovations and "next generation products".  BAT has provided a most illuminating review of its understanding of e-cigarettes as one part of a new product portfolio in a recent investor presentations its marketing strategy.

The Canadian market for "next generation products" is blocked for companies which want to be seen to be operating within the law and which need large (legal) distribution and marketing channels.

For this, they need Health Canada to legitimize (instead of ignore) the e-cigarette market.

A policy void that has attracted TI interest

Not surprising, then, that one of their operational objectives is to be the ones who define the new regulatory framework. Or, as they put it to investors "lead the formalisation of NGPs (next generation products)".

Fore-warned,  hopefully, is fore-armed.

Election 2015: The Party Platforms on Tobacco

Of the forty-two generation elections that have been held in Canada, tobacco has rarely been included among the electoral commitments of the political parties who vie for voter support.

The 2015 federal election, which will culminate in a vote on Monday October 19, is a notable exception.* Of the 3 leading national parties, two have made specific commitments to implement tobacco control policies in their official platforms.

The Liberal Party of Canada (LPC) was the first platform released (on October 5). In it, the party said it "will introduce plain packaging requirements for tobacco products, similar to those in Australia and the United Kingdom." (Liberal Platform, page 21)

Later that week, on October 9th, the two other parties released theirs:

• The Conservative Party of Canada (CPC) made no mention of tobacco or smoking. (Conservative Platform)
• The New Democratic Party (NDP) committed to "implementing plain packaging of tobacco products" and to increased expenditures on reducing smoking by $10 million per year. (NDP Platform, pages 4 and 64).

Neither of the two prominent minor parties - the Green Party and the Bloc Quebecois - made reference to tobacco in their campaign literature.

Additional commitments had been sought of the three main parties by two civil society groups prior to the release of the platform.  Among these were requests for the party to:

• "endorse the development of a made-for-Canada plan to end tobacco use"
• "support a comprehensive review to examine ways to enhance and modernize Canada's federal tobacco control legislation and strategy"
• "support a substantial increase in Health Canada's tobacco control budget" possibly by using a license fee.
•  "support federal legislation to ban flavours including menthol in tobacco products..

The Conservative Party did not respond to either request.

The Liberal Party said it supported a target of less than 5% smoking prevalence by 2035. It reaffirmed its commitment to plain packaging, said it would examine ways to enhance and modernize tobacco controls laws. It made no commitment to additional funding, but said it would review the approach of a license fee as part of a renewal process. It expressed support for provincial laws which ban menthol, but cautioned that a review of whether further action was needed would be required before changes to federal law would be implemented.

The NDP did not agree to an endgame, but said it would "implement measures to markedly reduce tobacco use across the country." It did agree to a comprehensive review and a consultations towards a "dynamic" new federal strategy. It made a specific commitment to $10 million per year funding, and said it would consider a license fee. It agreed to plain packaging and to continue its previous position of banning menthol in cigarettes.



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* In September 2008, the Conservative Party promised to ban flavouring in tobacco. The Cracking down on tobacco marketing aimed at Youth Act", passed in 2009 after their election victory, was the fulfillment of that promise.

Banning menthol: the Canadian firsts.

Two months have passed since World No Tobacco Day (May 31), during which the Canadian province of Nova Scotia became the world's first jurisdiction to successfully implement a ban on menthol cigarettes.

It is possible that this event will receive as many conflicting views in Geneva, headquarters to both the World Trade Oragnization and the World Health Organization, as it has in Ottawa, where the federal government refusal to ban this harmful additive is at odds with the recommendations of health analysts and provincial governments.

Menthol: banned in Canada but not by the government of Canada

There are at least two main reasons why menthol in cigarettes is considered to be a harmful additive to tobacco products:  it makes cigarettes more attractive to young people, and by giving a cooling sensation it can trigger smokers to inhale dangerous smoke more deeply into their lungs.

Canada was one of the first jurisdictions to ban flavouring additives in cigarettes, but declined to include menthol in its 2009 law, and repeated this exemption when new regulations were issued earlier this year.

As the regulatory notice for this change sets out, there was a unanimous call from sub-national health authorities, health professionals, academics, and NGOS for "a total ban on all flavoured tobacco products, including menthol products." Only industry groups and a lone member of the general public opposed such a ban. "Of the 58 submissions, 50 specifically called for a comprehensive ban of all flavours, including menthol in all tobacco products."

No health rationale was provided for rejecting the call, and the regulatory notice makes clear this was a decision that was based on policy choices, not evidence. "While the Department is concerned about the use of flavours, including menthol in cigars as well as in other tobacco products, it has chosen at this time to focus its attention on reducing the appeal of certain types of flavoured cigars to counter industry innovation since the 2009 amendment. "

A small percentage of the Canadian market

The market for mentholated cigarettes in Canada is relatively small. (Euromonitor estimates that only 3% of the cigarettes sold in Canada have had menthol added to them.) Tobacco companies have not yet introduced into Canada the novelty menthol products, like 'click convertibles' that have become a popular niche market in South America and Eastern Europe.

Nonetheless, as with other flavoured tobacco products, menthol has emerged as a factor in the uptake of smoking by young people. Although it is a small market, it is thought to have a disproportionately harmful effect on vulnerable population and to create larger long-term consequences.

Leadership by provincial governments

Recognizing that the federal government was not going to take action, some provincial governments planned to exercise their own authority to regulate the tobacco market. This spring six provincial governments began or completed the process of legislating this additive off the market.

Nova Scotia's ban came first (May 31, 2015), with Alberta, New Brunswick, Quebec, Ontario and Prince Edward Island scheduled behind. Collectively, these six provinces include 70% of Canada's smokers.

(See chart of implementation dates below)

The challenges, trade and otherwise.

The Canadian government may find itself in the awkward position of defending internationally a position that it refuses to accept domestically.

It was only a week ago that Canada officially notified the World Trade Organization that this trade-contentious contentious policy was already implemented in one Canadian jurisdiction. Earlier this summer, it had given notice of the upcoming restrictions in New Brunswick and Ontario. (G/TBT/N/CAN/458, G/TBT/N/CAN/462 and G/TBT/N/CAN/455). Presumably notices will also follow when the legal groundwork has been completed in Alberta, Quebec and PEI.

Bans on menthol have been much discussed at the WTO. A challenge to the US ban on clove cigarettes by Indonesia was upheld because its law did not also ban menthol, thus leaving two "like products" with different and discriminatory treatment. The suggestion that Alberta would impose a ban drew fire from Indonesia at a meeting of the Committee on Technical Barriers to Trade earlier this spring, even though no formal notice had been given. (G/TBT/M/65) Brazil's regulation banning all additives (Resolution No. 112, 29 Nov 2010) was discussed on at least four occasions by the same committee. (G/TBT/M/54, G/TBT/M/55, G/TBT/M/56, G/TBT/M/57 ).

Last year, the European Union adopted a new tobacco directive which required states to ban menthol flavouring by 2020. This has not yet been discussed at WTO, but the government of Poland has threatened legal action.

Legal action has already started against provincial bans. Imperial Tobacco filed a challenge against Nova Scotia's law a few days before the ban went into effect - although little more about this lawsuit has been made public.

Legislation	Alberta	Ontario	Quebec
Name	Bill 33 Tobacco and Smoking Reduction Act and Regulations	Bill 45, the Making Healthier Choices Act	Bill 44: An Act to bolster tobacco control
Date introduced	November, 2013	November 24, 2014	May 5, 2015
Date enacted		May 28, 2015
Date ban implemented	September 30, 2015	Not yet established (“up to 2 years” after January 1, 2016)	9 months after enactment of law

Legislation	New Brunswick	Nova Scotia	Prince Edward Island
Name	Bill 44, An Act to Amend the Smoke-free Place Act,	Bill 90 Tobacco Access Act	Bill No. 10, An Act to Amend the Tobacco Sales and Access Act
Date introduced	May 27, 2015	April 17, 2015	June 9, 2015
Date enacted	June 6, 2015	May 11, 2015	July 10, 2015
Date ban implemented	January 1, 2016	May 31, 2015	TBD