Discussion Paper: Legislative Review of the Tobacco and Vaping Products Act

Date:

The Tobacco and Vaping Products Act (TVPA) came into force on May 23, 2018. It amended the former Tobacco Act, which was originally enacted in 1997.

The purpose of the TVPA with respect to tobacco products is the same as the former Act – to provide a legal framework in response to the national public health problem posed by tobacco use.

The TVPA also created a new legal framework, in conjunction with other pieces of federal legislation, to respond to the increasing availability of vaping products (with and without nicotine) in Canada and to help ensure that Canadians would be appropriately informed about and protected from the risks associated with these products. While the TVPA still sets out the specific objectives of the Act with respect to tobacco products, its purpose statement was amended in 2018 to include specific objectives with respect to vaping products, and established a link between those vaping products provisions and the overall tobacco control objectives of the Act.

The effective regulation of tobacco and vaping products is a key element of Canada’s Tobacco Strategy – one that supports achieving the ambitious target of less than 5 percent tobacco use by 2035. Tobacco use remains the leading cause of preventable death and disease in Canada, with approximately 48,000 people dying from smoking-related illnesses every year. Footnote1 Decades of tobacco control have resulted in significant progress being made with respect to reducing the number of Canadians who smoke. The smoking rate has seen a steady and continuing decline from 35 percent in 1985 Footnote2 to 13 percent in 2020, or 4.2 million Canadians who smoke Footnote3. Reducing rates of tobacco use to reach the goal of less than 5 percent tobacco use by 2035 remains a significant challenge. It was in this context that the TVPA sought to strengthen proven measures that had contributed to a reduction in tobacco use.

The new legislation sought to regulate vaping products in a way that underscored that these products were harmful for youth and non-users of tobacco products. At the same time, it recognized emerging evidence indicating that, while not harmless, vaping products were a less harmful source of nicotine for an individual who smokes and quits smoking completely. Around the same time that the new legislation was being enacted, vaping products were being used by significantly more people in Canada. In 2017, nearly 900,000 Canadians over the age of 15 had reported past 30-day use Footnote4 and the design of and market for these products had evolved significantly since they were first introduced in Canada in 2006.

During the course of developing and debating the proposed legislation, protecting young persons and non-users of tobacco products from nicotine addiction and tobacco use emerged as a key objective. At the same time, Parliament recognized that while vaping presented the potential to be a less harmful source of nicotine for persons who smoke and switch completely to vaping, there was uncertainty around the health risks and benefits of using these products. Accordingly, broad regulatory authorities pertaining to elements of the legislation, which included advertising, promotion, labelling, access, flavours, and product attributes, were included in the TVPA to enable the Government of Canada to respond to emerging evidence and fine-tune restrictions as needed. As an added safeguard, the Act also included a requirement for a legislative review of the provisions and operation of the TVPA, three years after coming-into-force, and every two years thereafter.

While the review of the TVPA will focus on the federal legislation and efforts, it is important to recognize that all orders of government share responsibility within their own authorities/jurisdiction for adequately promoting and protecting the health of Canadians from known health hazards such as tobacco use. For example, provincial and territorial governments are primarily responsible for restricting smoking in workplaces and public places, such as restaurants, bars and shopping centres. For more information regarding the tobacco and vaping regulations in a particular province or territory, please consult their individual websites.

The first review of the Act will focus primarily on the vaping-related provisions in the TVPA – in particular the provisions to protect young persons. More specifically, it will assess the operation of the Act, and examine the early evidence from the Act’s first three years of existence to assess whether it is making progress towards achieving its stated vaping related objectives. Subsequent reviews, which will take place every two years, will focus on additional elements of the TVPA, including the tobacco-related provisions.

We want to hear from you

A key part of this review is seeking the perspectives of Canadians, experts, and other stakeholders as it relates to the operation of the TVPA, with a particular emphasis on protecting young persons.

You are invited to participate in this consultation by sharing your perspectives. To assist in providing your input, a list of key questions for each vaping-related objective in the Act has been provided. You are also encouraged to submit any evidence that you may have to support your responses.

You may participate by sending your written submission by April 27, 2022 to: legislativereviewtvpa.revisionlegislativeltpv@hc-sc.gc.ca

Please note: you must declare any perceived or actual conflicts of interest with the tobacco industry when providing input to this consultation. If you are part of the tobacco industry, an affiliated organization or an individual acting on its behalf, you must clearly state so in your submission.

Health Canada is also interested in being made aware of perceived or actual conflicts of interest with the vaping and/or pharmaceutical industry. Therefore, please declare any perceived or actual conflicts of interest, if applicable, when providing input. If you are a member of the vaping and/or pharmaceutical industry, an affiliated organization or an individual acting on their behalf, you are asked to clearly state so in your submission.

Please do not include any personal information when providing feedback to Health Canada. The Department will not be retaining your e-mail address or contact information when receiving your feedback and will only retain the comments you provide. Submissions will be summarized in a final report; however, comments will not be attributed to any specific individual or organization. This final report will be tabled in Parliament in 2022 and will be made public on Canada.ca at that time.

Discussion Areas

In the three years since the TVPA was enacted, the vaping product market continues to evolve and additional evidence is emerging. The Act includes an overarching purpose as it relates to vaping products, which is to support the overall tobacco control objectives of the Act and prevent vaping product use from leading to the use of tobacco products by young persons and non-users of tobacco products.

In particular, the Act enumerates five specific vaping-related objectives:

  1. protect young persons and non-users of tobacco products from inducements to use vaping products;
  2. 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;
  3. protect the health of young persons by restricting access to vaping products;
  4. prevent the public from being deceived or misled with respect to the health hazards of using vaping products; and
  5. enhance public awareness of those hazards.

In order to meet these objectives, the Act regulates the manufacture, sale, labelling and promotion of vaping products sold and manufactured in Canada. Vaping products are defined as a distinct set of products that are separate from tobacco products. Measures relating to vaping products contained in the Act are similar to, but not as restrictive as, those that apply to tobacco products. This reflects the scientific evidence available at the time the TVPA was put in place, that vaping products are harmful, but less harmful than tobacco products. As such, the legislation restricts access to vaping products to persons over 18 years of age and also includes significant restrictions on the promotion of vaping products, including prohibiting advertising that appeals to youth, lifestyle advertising, testimonials or endorsements and sponsorship promotion. It also prohibits the promotion of flavours that are appealing to youth or specific flavour categories listed in the Act (confectionary, dessert, cannabis, soft drink and energy drink) and restricts giveaways of vaping products or branded merchandise. The Act also includes regulatory authorities to respond to emerging issues, as required. Over the past three years, the Government of Canada has used these regulatory authorities to implement further restrictions on vaping products to protect youth and non-users of tobacco products.

This discussion paper will examine each of the vaping-related objectives listed above, provide a summary of the current context, and describe federal government actions that have been taken to respond to issues that have emerged since the legislation was enacted. Each section will include a list of key questions to assist in providing your input.

Protect young persons and non-users of tobacco products from inducements to use vaping products

Context :

The Act aims to protect young persons and non-users of tobacco products from inducements to use vaping products. As such, the legislation includes significant restrictions on the promotion of vaping products, including restricting giveaways of vaping products or branded merchandise, along with prohibiting the promotion of flavours that are appealing to youth or specific flavour categories listed in the Act (confectionary, dessert, cannabis, soft drink and energy drink). It also prohibits advertising that appeals to youth, lifestyle advertising, testimonials or endorsements and sponsorship promotion.

Vaping product usage in Canada increased overall after the TVPA was enacted in 2018. Some of this can be attributed to the expansion of the market as a result of the introduction of a new legal framework for these products. At the same time, vaping product technology and design was changing rapidly with many new products arriving on the market that were smaller, sleeker and easier to use, contained high concentrations of nicotine, and offered in a variety of flavours. Major international players in the vaping product market also began to introduce new products in Canada. During this same period, television, social media and retail advertising which could be seen or heard by youth increased dramatically.

All of these factors played a role in the rise in youth vaping. Surveys have shown that youth vaping rates doubled over the two-year period since 2017, increasing from 6 percent (127,000) in 2017Footnote5 to 14 percent (291,000) in 2020, unchanged from 2019.Footnote6 While the most recent available data, released in March 2021 by Statistics Canada, revealed that the concerning trend of rising youth vaping rates may be levelling off, additional data is needed to reliably assess trends, especially in light of the social and economic restrictions imposed by the COVID-19 pandemic. Daily use of vaping products by youth aged 15-19 years of age was 5 percent (107,000) in 2020.

Read full posting here.

Health Canada – 2022-03-16.

 

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