Bill S-5 (Historical)

An Act to amend the Tobacco Act and the Non-smokers’ Health Act and to make consequential amendments to other Acts

Part 1 of this enactment amends the Tobacco Act. In order to respond to the report of the House of Commons’ Standing Committee on Health entitled Vaping: Toward a Regulatory Framework for E-Cigarettes, it amends the Act to regulate the manufacture, sale, labelling and promotion of vaping products and changes the title of the Act accordingly. It also amends certain provisions of the Act relating to tobacco products, including with respect to product standards, disclosure of product information, product sale, sending and delivery and product promotion. The schedule to the Act is amended to add menthol and cloves as prohibited additives in all tobacco products. As well, it adds new provisions to the Act, including in respect of inspection and seizure.
Part 1 also makes consequential amendments to the Food and Drugs Act and the Canada Consumer Product Safety Act.
Part 2 of this enactment amends the Non-smokers’ Health Act to regulate the use of vaping products in the federal workplace and on certain modes of transportation.

[Marc Kealey, Member and Public Affairs Counsel, Canadian Vaping Association]

Thank you very much, Mr. Chairman. I appreciate, through you, the members giving us an opportunity to share our perspective on this piece of legislation.

I'm a health public policy expert, Mr. Chairman. I'm a member of the Canadian Vaping Association, and I'm its lead on government affairs. With me today is Mr. Boris Giller, who's a CVA board member and the co-owner of one of Canada's largest vape product shops, 180 Smoke.

Together, Boris and I have expertise in the vape industry. The industry in Canada is a decade old. CVA has been the premiere advocate on behalf of the industry, its members, and those who vape. Our goal is fair legislation and regulation. Our reach goes across Canada, and our impact with government goes to all three levels.

I want to thank your committee members, the House of Commons, and the Senate for your leadership on this. It's a tough piece of legislation. As a government, as a committee, and as regulators, you said yes to vaping in Canada, and regulated it instead of an outcome that would have forced it underground. We appreciate that. It is a viable alternative to smoking. The Canadian model as we contemplate it today—if you travel in our circles—is envied around the world, believe it or not.

Let me further contextualize that. A few years ago, vaping in Canada was a hobby. Today it's a viable industry, increasing exponentially as vapers seek an alternative to smoking cigarettes. The number of vape product shops has grown exponentially in Canada as well, with the current numbers of almost 1,000 stores in Canada representing well over 5,000 employees, serving over a million customers, and generating hundreds of millions of dollars in revenue. At the same time, there are 100 e-liquid and hardware manufacturers representing significant pre- and post-market sales, which in turn underscores significant recurring and predictable revenues against a marketplace of those who want to vape and no longer smoke cigarettes.

Please understand that the growth of this industry has not been the result of expensive marketing campaigns. The CVA and our member organizations are not aligned with tobacco. In fact, the growth of vaping has been a direct result of the substantial demand for vape products by millions of ex-smokers. The market will only continue to grow, not only as a viable and less harmful alternative to cigarettes, but also because of government initiatives that legislate it as a less harmful product in Canada.

The majority of Canadian vape product shop operators, manufacturers of e-liquids, and advocates are, like many who vape, former smokers. They have chosen to vape rather than smoke cigarettes. They realize the potential of this disruptive technology as a less harmful alternative to smoking, both cigarettes and of course now cannabis.

CVA has taken substantial risks to pursue a mission aligned with Bill S-5. Many people associated with vaping would assert a different path of perhaps fighting government on what they believe is their right to vape. However, contrary to that view, the Canadian Vaping Association believes that working with government on making this bill work is more palatable and more productive.

We believe Canada is a role model for other countries in developing and implementing effective ways of reducing the harms of smoking. At the provincial level, smoke-free legislation has taken hold. I've been part of the smoke-free Ontario campaign from the start, 10 years ago. At the national level, Canada's tobacco reduction initiative is enviable. Through Bill S-5, we believe the Government of Canada has been responsible, implementing suitable and effective legislation that ensures adult smokers have access to products that substantially reduce the harm that cigarette smoking is known to cause, all the while recognizing that a less harmful alternative ought to be available.

To amend the Tobacco Act and create a category for vaping is not only welcome, but also suggests that vaping is a choice over smoking and has the potential for dramatically reducing disease and death caused by smoking. CVA encourages members of this committee to review the growing body of evidence, including qualified literature, global studies, and research on vaping that modifies our views. Frankly, it ought to form the thinking of your committee when looking to draft regulations for vaping going forward.

Over the last few years, the Canadian Vaping Association has met with several of you on the committee to encourage your support for our views and to offer advice. Let me be specific.

Recent studies in the aggregate have shown that vaping is less harmful than smoking. The former minister herself referenced this CVA messaging when she introduced the legislation in November of 2016. On that point, we're pleased that the legislation includes a timely review, so that as science and research prove out in favour of vaping as a less harmful alternative, those findings will in fact be reflected appropriately in your regulations.

With respect to overall industry regulation, we've been working closely with qualified organizations on the development and implementation of an accreditation program at the national level.

The patchwork of regulations from provincial legislative initiatives across Canada has confounded this industry while we wait for this milestone to occur. Bill S-5 does offer a national framework for retail and manufacturers of vape products, and we aspire to have this reflected in our national accreditation program plan.

CVA board member Sam Tam sits with Health Canada on the Underwriters Laboratories of Canada committee to establish global standards for technology, devices, and battery safety as they pertain to vaping. Furthermore, our board president, Shaun Casey, sits on a Standards Council of Canada committee chaired by Health Canada for the establishment of ISO e-liquid manufacturing safety standards.

An accreditation program, we believe, will provide comfort to you, as regulators, that vape products and services available to consumers are of a quality that is measured against a robust set of standards. A national accreditation program would require vape manufacturers, e-liquid and hardware manufacturers alike, as well as vape product shops, to commit to and submit to a program where a common set of standards for operations of their physical plants, policies and procedures, and other variables are measured. Any negligent behaviours or deficiencies would result in fines or perhaps remediation plans, respectively, to demonstrate compliance. We are committed to this process.

The utmost important piece of this legislation, in our view, ought to be the value of the information and the manner in which customers receive detail by a vape product shop employee. When they make the choice to acquire or consume a vape product, they need to know what they're buying. To that end, we encourage the committee to work with us at the Canadian Vaping Association as we develop a certification program for vape product shop employees. Purveyors of vape products anywhere in Canada ought to be well trained to help customers make the logical choice to a less harmful product than cigarettes.

We're considering qualified career colleges, not only to develop a curriculum, but to have it delivered in every province. It would be entirely helpful to make this certification program part of your intended regulations and mandatory in all provinces.

In fact, the FDA in the United States referred to our plans for certification in Canada as a beacon to follow in the United States. It contemplates national dialogue in the United States on its own vape legislation, and it has looked to Canada, and especially what we're doing on certification, as a role model to that end. Our president, Shaun Casey, and I have testified on many occasions in the United States on this issue.

The Canadian Vaping Association believes the goal of regulation should be to ensure that maximum benefits are realized while minimizing potential harms. We believe that sales should be restricted to those over the age of majority. We concede that restricting its use in public spaces is inevitable. We agree that certain lifestyle promotion or advertisements are not appropriate.

The amendments we put forward on Bill S-5 to the Senate committee ensure that youth are not able to access these products, and we agree that the use and acquisition of vaping tools should be limited to public areas that minors are prohibited from entering.

Additionally, the amendments that we originally put forward to the Senate provide adult smokers with access to assistance provided through qualified vape product shop employees, which can be crucial to the success of a smoker looking for an alternative to cigarettes.

Vaping technology has catapulted in quality by leaps and bounds. Research, too, has debunked the myths that have permeated mainstream media about vaping, and because the technology is getting better, vaping may yet prove to be an effective breakthrough in anti-smoking.

I welcome your questions, and thank you for your attention.

[Don Davies, NDP, Vancouver Kingsway, BC]

I guess I want to end with “lifestyle”. I'm not sure I'm clear on this. Bill S-5 does restrict the kinds of ads for vaping products that are allowed in public places, those that are reasonably attractive to either lifestyle. That's in proposed section 30.2. It places fewer restrictions on ads in adult-only venues such as bars, where lifestyle ads and purchase incentives are permitted. That's in proposed section 30.3. In Alberta, 18-year-olds are in bars—

[Ginette Petitpas Taylor, Liberal, Moncton—Riverview—Dieppe, NB]

Once again, with respect to the regulations and in the proposal that we've brought forward in Bill S-5, we absolutely want to make it clear that there are going to be no names of flavours that are going to be attracting children.

[Ginette Petitpas Taylor, Liberal, Moncton—Riverview—Dieppe, NB]

As you're aware, we continue to work on our tobacco strategy at the moment. We've finished off a consultation process with many Canadians. In December of this year, we released our “What We Heard” report with respect to those consultations.

As a result of those consultations, we are taking all that information in hand. That is going to form the next part of our framework moving forward. We recognize that if we want to attain the objective of reducing tobacco use by 2035, we have to move forward. With respect to the area of Bill S-5, this is absolutely a step in the right direction. We recognize when we look at the issue of plain packaging that there's an absolute correlation and that we'll see the number of smokers reduced as a result.

That is why I'm very pleased that we're able to move forward with this legislation, and I'm looking forward to seeing it receive royal assent. From there, we'll be able to enforce the rules and regulations that will be in place. From there, we'll be continuing with other components of our strategy to make sure that we can work hard to achieve our 2035 target.

[James Van Loon, Director General, Tobacco Control Directorate, Department of Health]

We do take that very seriously. First of all, I would say, again, that we don't see any evidence that plain and standardized packaging contributes to the problem of illicit trade. This is what we hear from the other regulators who've moved down the way. We do see evidence that it reduces the appeal of the products, especially to young people.

On the topic of how to deal with the problem of contraband, we agree this is a serious problem that needs to be addressed. Over the last five years, the government spent $43 million working on the contraband issue through various partnerships, with Public Safety, the RCMP, CBSA, and various other police forces.

On the tax stamps, they have overt and covert markings, absolutely. Bill S-5 provides us with the authority to require alphanumeric stamping on individual tobacco products. That would help with tracking.

Finally, when I look at the Australian model, they have allowed covert marks on the packs by industry. That's something we're looking at and considering as we figure out what the regulations will actually say.

[Ginette Petitpas Taylor, Liberal, Moncton—Riverview—Dieppe, NB]

You bring up some very good points, Ms. Gladu.

Protecting youth is a priority of mine as health minister. We recognize at this point that the vaping industry in Canada is worth millions of dollars.

We recognize people are selling products all over the place. The products they purchase are unregulated. We don't know where they come from, and there are no requirements for the devices they use to vape.

That is why Bill S-5 is so important because we certainly want to make sure the rules are put in place to control these types of products. Keeping it out of the hands of our children is a priority. That is why setting the minimum age of 18 for youth consumption is a step in the right direction because, as you have indicated, we certainly want to make sure the area for their access to it is going to be extremely limited.

With regard to the sales of the products, I'm going to be frank. I'm going to have to turn it over to one of my officials, Denis, as to exactly where it's going to be sold because I don't have the specific details.

[John Oliver, Liberal, Oakville, ON]

Thank you very much for being here. Welcome back to the health committee.

There's been a good discussion already about the balancing act that's here in Bill S-5. One one hand, we want to get our youth away from nicotine and away from tobacco. We don't want them to be enticed or brought in to become addicted to nicotine. For me, that is the number one priority. I've heard you say that as well. That is, to me, what must happen, and that's what Bill S-5 is continuing to further.

We have a second item, though, which is trying to move adults who have tobacco smoking habits onto a healthier way of consuming nicotine than smoking. Those are the competing agendas. Personally, I don't think the balance is there. I think you've mentioned a few times that you think it's there, so I was delighted to hear that you're entertaining an amendment on lifestyle. I think that's a very important one, so thank you for that.

My second point, though, is on location of advertising and location for vapour product advertising. I have a 13-year-old son. I don't want to be at my neighbourhood bus stop with him with a vaping advertisement on my local bus stop. I don't want to go to the movie theatre and try to explain what vaping is and why vaping is a product that's being advertised. I don't want to go to the local hockey rink and explain to him what vaping is and why it's done. Location is a critical issue. I believe that, with the way it's set up now, we're going to be exposing young Canadians to vape products when we don't have to.

The Canadian Cancer Society was very strong on this one. What they said about Bill S-5 was that the vaping restrictions are weaker than the Tobacco Act and Bill C-45 for cannabis, that the vaping product advertising restrictions are weaker than in almost every other developed country except for the United States, and—these are all location advertising—the provisions regarding the location of vaping advertising are so weak that they resemble those of the 1964 tobacco industry advertising.

I guess my question to you is this. Would you please consider an amendment—and I'd like to bring one forward—that also restricts the location of advertising for vaping? I think there are lots of ways to communicate to adults who are smokers that vaping is a better way to consume nicotine, other than putting it on hockey rink boards. Would you consider an amendment on location?

[Ginette Petitpas Taylor, Liberal, Moncton—Riverview—Dieppe, NB]

I think, once again, we're talking about apples and oranges here. I think we have to be very, very clear. We are moving forward with Bill S-5 with respect to the issue of flavour. We want to make sure that there are strict restrictions in place to ensure that in no way will these products be attractive to children.

We also recognize, however, that there are benefits to adults who choose to use these products. Going from smoking to using vaping products, the evidence is clear that it's less harmful. That is why we're moving forward with this balanced type of regime to ensure that we can offer the products to those who need it.

[Ginette Petitpas Taylor, Liberal, Moncton—Riverview—Dieppe, NB]

Do you mean with respect to Bill S-5?

[Ginette Petitpas Taylor, Liberal, Moncton—Riverview—Dieppe, NB]

I haven't seen any specific research with respect to that, but that's why it's really important for us to strike that balance with the proposed Bill S-5. We really want to make sure that we in no way promote vaping products to children under the age of 18, or promote them to anyone who's a non-smoker at this point in time. We don't want to create another generation of people who are addicted to this substance. That is why we're very restrictive with respect to our marketing and our promotional materials, to ensure they don't encourage young people to want to start this habit.

That being said, as I've indicated, we also recognize that it can be a very good harm reduction approach when it comes to smokers. We certainly want to ensure that the products are available for those who smoke right now, with the hope that they are going to be able to wean themselves off.

I have something to share with you if I have the time, Mr. Chair.

[Ginette Petitpas Taylor, Liberal, Moncton—Riverview—Dieppe, NB]

Absolutely. Again, as health minister, my responsibility is the health and safety of Canadians. My specific priority, when I look at Bill S-5, is also is that I have a bias with respect to youth. I really want to make sure that we keep these products out of the hands of our youth. We also want to prevent our Canadians and our young people from being addicted to nicotine. You're absolutely right. In moving forward, we've been working very hard to ensure that this bill gets through the Senate and also the House to ensure that we can get this to fruition.

With respect to the area of the amendments that I've indicated in my opening statements I absolutely welcome, I welcome an amendment to the area of lifestyle promotion. I, in no way, feel that it should be allowed in the public sphere. We recognize that we need to limit that, because we certainly want to ensure that Canadians are not going to be enticed to start smoking, either our youth or our adults who aren't smokers now.

[Ginette Petitpas Taylor, Liberal, Moncton—Riverview—Dieppe, NB]

Yes, the objectives of Bill S-5 are twofold. First of all, as health minister, my first priority is to protect the health and safety of our youth, and that's moving forward one of the main objectives of this bill. The other objective is to seize the opportunity. We recognize that there are several tobacco smokers right now who are wanting to switch from using tobacco and to transfer to vaping products. We can see that there could be some benefit to that.

We don't want to allow young people to be encouraged to use vaping products. That's why we want to ensure that there are strict regulations in place with respect to marketing and promotion. We don't want them to be enticed by that at all. On the other end of the spectrum, we also recognize that flavoured products, for some Canadians, can help them with kicking the habit of smoking and using vaping as an alternative option.

Going back to the youth, we want to make sure that the actual names of the flavours should not be appealing to youth in any way. For example, I think all kids like cotton candy, and probably some adults do too. We want to make sure these types of names won't be used for the flavours of the product, because, again, that name would be appealing to children.

With respect to the adult population, we want to make sure they have access to the flavours. But at the same time, we need to make sure we strike a balance, that we allow it for adult consumers while not making it appealing to our youth.

[Ginette Petitpas Taylor, Liberal, Minister of Health]

Once again, I'd like to thank the committee members for inviting me here this evening. I'm very pleased that you are studying this piece of legislation, as it's extremely important. Thank you so much for your hard work.

Thank you for allowing me the opportunity to be here this evening to speak about Bill S-5. I want to begin by thanking the committee members for the work they have done to help shape this bill.

Your report entitled “Vaping: Towards a Regulatory Framework for E-cigarettes” highlights the necessity to protect young people from the dangers of nicotine addiction while giving adults smokers access to vaping products as a less harmful nicotine source. Bill S-5 responds to this report’s recommendations; your efforts served to clarify important provisions of the legislation.

Colleagues, the necessity to update existing tobacco legislation is quite obvious. As you know, smoking remains a very concerning public heath issue in Canada. Despite decades of progress, tobacco-related diseases kill 45 000 Canadians each year, or one person every 12 minutes. These statistics are very sobering and, as Minister of Health, I find them unacceptable. As such, our government is trying to reduce smoking rates in Canada from 25% in 2015 to less than 5 % by 2035.

As we work towards this goal, we need to recognize that tobacco use in Canada is changing. Vaping products such as e-cigarettes are becoming more popular. From a public health perspective, we believe this poses both challenges and opportunities.

Bill S-5 strikes the right balance between protecting Canadians and leveraging the potential benefits of vaping products. It also addresses an important need by establishing a new legislative framework for the regulation of these products. This bill is a key element of the government's broader tobacco control agenda, which includes taking further action to ban menthol in tobacco products, implementing plain packaging requirements for tobacco products, and, finally, modernizing Canada's approach to tobacco control.

Since it was introduced, Bill S-5 has been thoroughly examined and amended. Last spring, the Standing Senate Committee on Social Affairs, Science and Technology embarked on a rigorous scrutiny of that legislation. It heard evidence from 22 witnesses representing 15 organizations, including consumer advocates, tobacco and vaping industry representatives, public health experts, academics, and government officials. Their invaluable comments clarified many recent amendments to the Bill under consideration today.

Many experts feel that vaping is a less harmful alternative to smoking. I have heard from Canadians who believe that vaping helped them quit smoking. Nevertheless, we must be cautious. There are risks to consider. Stakeholders have told us that they worry about how vaping products could affect young people. I want you to know that we share their concerns. We must ensure that the availability and prevalence of vaping products does not induce young people and non-smokers to develop nicotine addictions, which could lead them to start smoking.

That is why Bill S-5 would prohibit the sale of vaping products to youth under the age of 18, in line with the current minimum age of tobacco sales. Protecting youth from the dangers of nicotine addiction is a top priority of mine. I share some of the concerns expressed by the Quebec Coalition for Tobacco Control and others, especially regarding lifestyle promotion.

We do not allow lifestyle promotion of tobacco products, and we do not intend to allow it for cannabis products. To protect youth and non-smoking Canadians, I intend to support an amendment that would prohibit all lifestyle promotion of vaping products.

That said, I understand the potential of vaping products as a harm reduction tool. Marketing based solely on factual information will be allowed, with restrictions. For example, there are concerns that certain flavours could potentially make vaping products more appealing to young people. We recognize that some adults prefer flavoured vaping products, but we also know that certain flavours could attract youth to vaping, something that we absolutely want to avoid.

For this reason, Bill S-5 restricts the marketing and promotion of flavours such as candy, which would be appealing to youth. We have already taken significant action when it comes to flavoured tobacco by expanding the ban on menthol to cover 95% of all tobacco products. Bill S-5 was amended to go even further, to ban the use of menthol and clove in all tobacco products. We believe these measures will help protect Canadian youth from the serious, long-term health effects of nicotine addiction and tobacco use.

As I mentioned earlier, Bill S-5 has also advanced our objective of imposing plain and standardized packaging for tobacco products. Thanks to increasingly binding federal directives, the tobacco industry's capacity to attract new smokers, especially among young people, by promoting and advertising tobacco products has greatly decreased. In fact, packaging is one of the last restricted channels in which to do such advertising.

Research shows that promotion through packaging and product design is particularly effective with teenagers and young adults. Coloured packaging that includes logos, textures, and brand names can have a huge impact on young people at a stage of their life when they develop brand loyalty and adopt a smoker’s behaviour.

Conversely, plain packaging was shown to reduce access to tobacco products, especially by young people. Ninety percent of daily adult smokers over the age of 25 smoked their first cigarette before the age of 18. That is why tobacco-control leaders around the world focus on the plain and standardized packaging of tobacco products.

I think that we can all agree that tobacco companies should not be allowed to use packaging to make a harmful product more attractive. It is still important to adopt Bill S-5 in order for Canada to also implement those important and effective tobacco control measures.

In conclusion, Bill S-5 is a well-researched and balanced piece of legislation. It aims to protect young Canadians from developing nicotine addiction and from using tobacco. At the same time, it would allow adults to legally access vaping products as a less harmful alternative to tobacco. In addition, this legislation supports our government's efforts to implement plain and standardized packaging of tobacco products.

Bill S-5 reflects the considered opinions of many stakeholders, including public health experts, industry representatives, consumer advocates, and academics. The results of this strong piece of legislation will allow us to regulate the growing market for vaping products and advance the tobacco control agenda.

Thank you so much for your attention here this evening. I'd be absolutely pleased to take your questions.

[The Chair, Liberal, Bill Casey]

We'll call our meeting to order. This is meeting number 91. We're here to talk about Bill S-5, an act to amend the Tobacco Act and the Non-smokers’ Health Act.

We certainly welcome the Honourable Ginette Petitpas Taylor, the Minister of Health. As additional witnesses, we have Simon Kennedy, Deputy Minister; James Van Loon, Director General, Tobacco Control Directorate; and, Denis Choinière, Director, Tobacco Products Regulatory Office.

We have a short time with the minister and I want to try to make sure that everybody gets their opportunity to ask a question, so I am going to hold everybody to the time limit, which I usually don't do. I'm going to hold everyone to the time limit for answers and questions. Mr. McKinnon and Dr. Eyolfson have agreed to limit their seven-minute times to five minutes so that Mr. Ayoub can have four minutes at the end.

First of all, we have opening statements.

Fire away, Minister. You have 10 minutes.

[John Oliver, Liberal, Oakville, ON]

Thank you for that.

This is to any of the witnesses. The Canadian Cancer Society suggested four changes to Bill S-5 dealing with how vaping products are being advertised. They suggested that vaping products be limited to advertising or brand preference only; that vaping-product lifestyle advertising in bars and in publications be banned, as it is with tobacco; that restrictions on the location of permitted incentive promotions be restricted; and that restrictions on the locations of vaping product advertising be greatly strengthened to really match the provisions in the Tobacco Act.

Does anybody have any comments on those? Do any of you have any strong feelings about the vaping industry and the advertising of its products and whether Bill S-5 should go further than it does now?

Akehil, Maxime, or Anabel.