Submission in response to: Consultation on the Legislative Review of the Tobacco and Vaping Products Act on March 16, 2022
April 27, 2022
Submitted by: Christina Pan, COO, Delota Corp.
To: Manager, Legislative Review
Office of Policy and Strategic Planning
Tobacco Control Directorate
CSCB, Health Canada
0301A-150 Tunney’s Pasture Driveway
Ottawa, ON K1A 0K9
Email: legislativereviewtvpa.revisionlegislativeltpv@hc-sc.gc.ca
Disclosure
We are submitting comments on behalf of 180 Smoke Vape Store, a leading Canadian omnichannel specialty vape retailer with a strong brand presence among Canadian vape users.
180 Smoke has 25 retail locations across Ontario and a dominating e-commerce presence with over 130,000 retail accounts, and over 190,000 registered online accounts.
Despite this disclosure, our comments are sincere and should be weighed with appropriate consideration.
General Comments
The TVPA was enacted to protect youth and non-smokers from inducements to tobacco and vaping products. The Act also recognizes that vaping is less harmful than smoking and there is a benefit to smokers who switch to vaping from smoking.
We support the reasonable measures mandated by the Act. In our opinion, these include:
- Age of majority sales
- The ban on advertising that could be appealing to young persons: section 30.1.
- The ban on lifestyle advertising (glamour, recreation, excitement, vitality, risk, daring) of vaping products/brand elements: section 30.2. As well as the ban on characters and animals.
- Indications and illustrations on vaping products/packages that suggest flavours are banned if they could be appealing to young persons: section 30.46.
- The ban on giveaways of objects that display vaping product brand elements if the objects are associated with or appealing to young persons, or if the objects are associated with glamour, recreation, excitement, vitality, risk or daring lifestyles: section 30.5.
Unlike some other vaping industry insiders, we also support the ban on any promotion of confectionery, dessert, cannabis, soft drink, and energy drink flavours in S30.48 and Schedule 3 of the TVPA.
For context, across our operations this particular restriction had little effect on the industry or the availability of flavours, but it does limit the visibility of flavours that may be appealing to people under the age of majority, which represents what these measures are designed to accomplish.
Essentially, all retailers and manufacturers have already made the requisite changes in order to comply. There is nothing to gain by attempting to put pressure on this existing regulation.
In my experience, the CVA’s concern around this measure is based on a retailer’s ability to effectively communicate flavour descriptions to customers online or through physical/visual means in our retail stores. This is a reasonable concern, but ultimately we can and should rely on our sales staff to effectively (and freely) communicate flavour descriptions and product differentiators to age-verified customers in-store.
More generally, it should also be noted that 180 Smoke recently (March 2022) conducted an online survey, over 400 of our registered retail and online consumers responded to said survey. The results indicate the 180 Smoke consumer base is an older one (largely falling into two age groups: 30-39/40-49), most of whom are aware of the flavour ban being proposed, and who indicate they have signed some form of petition and/or have made their lack of support for the ban in question clear in some way.
Despite these results, 180 Smoke, and like-minded retailers and manufacturers, have controls in place at retail (anyone who looks under the age of 25 needs to provide valid identification, just like cannabis dispensaries and LCBO stores), and all online orders are required to provide valid proof of age and identity to Canada Post or the third-party logistics partner upon delivery.[1] [2] [3] [4]
In summary, any further regulation will only harm adult smokers and the businesses that are following the law. There can’t be an accurate evaluation of the TVPA’s current ability to protect youth and non-smokers until enforcement is being performed consistently. Regardless of the regulation implemented youth will continue to access these products through the black market, since to date these lawbreakers have faced no real consequences and the potential consequences are not severe enough to act as a deterrent.
Protect young persons and non-users of tobacco products from inducements to use vaping products
Are the current restrictions on advertising and promotional activities adequately protecting youth?
The existing regulations and framework do a good job at striking a balance between protecting young people while ensuring access to vape products for adult smokers.
Ontario’s 19+ to enter a specialty vape retail store, combined with federal advertising and promotion restrictions, mean that individuals under the age of 19 cannot have easy access to view, and cannot legally purchase vaping products.
Restricting flavour naming conventions and imagery serves to make the products less appealing within a household or in general outside of the specialty vape store environment. We believe this is an effective way to limit exposure to youth.
We see from recent data that youth vaping rates are declining on an annual basis, but two years is not a long-term analysis.
As a retailer we are prohibited from advertising in any way that might be visible to those individuals under the age of majority – this is an effective way to avoid potential inducements to use these products by youth.
All that said, we firmly believe it is the consistency of enforcement that needs to be addressed.
Are the restrictions within the Act and its regulations sufficient to address potential inducements to use these products by youth and non-users of tobacco products?
Again, it is more about the consistency and interpretation of the standards and regulations. Operating a chain of 25 retail stores we have seen firsthand the inconsistency with labeling and naming restriction inspections. There have been multiple occasions where we have experienced seizures at one location when the same product is deemed compliant at others.
Are there other measures that the Government could employ to protect youth and non-users from inducements to use vaping products?
To be clear, there is no regulation that exists, or will ever exist, that will prevent youth from attempting to experiment.
Our stores turn away those without valid government-issued photo ID showing that they are 19 years of age or older, and we check ID upon delivery for all online sales. [5] [6] The frequency of this has neither increased nor decreased as a result of any federal or provincial legislation that has been released in the past eight years.
The general public does not pay attention to these types of rules because they have no reason to – they stand to lose nothing by purchasing vaping products underage.
Instead, as responsible retailers, it has been up to us to make this distinction and to take our own steps to ensure that youth are unable to purchase vaping products from our location.
Even if widespread advertising was permitted, we would still have this obligation – it is an obligation that we committed to long before there was an age restriction mandated by the government for the purchase of vaping products.
Again, with all that said, it still needs to be noted that Health Canada’s release of regulations and issuing warning letters for non-compliance, many of the compliance standards and regulations seem to be open to interpretation by individual enforcement officers, with little to no recourse or clear path for industry practitioners, and even customers themselves, to get a clearer understanding of those same standards and regulations.
Does the TVPA contain the appropriate authorities to effectively address a rapidly evolving product market and emerging issues such as the observed increase in youth vaping?
While we have done our best to comply with regulatory changes, the first opportunity we have to ask questions regarding specific regulations is after an official inspection, which is potentially too late. Clearer paths to knowledge, education, and definitive interpretations of the standards and regulations will make them easier to implement, follow, and enforce.
Has scientific evidence emerged in this area since the legislation was enacted in 2018 that points to the need for additional action or further restrictions?
Not to our knowledge, however, an imbalance exists between inspections in vape specialty stores vs convenience stores.
There are over 7,300 convenience stores in Canada and only 1,000 vape stores.
That said, when the TVPA compliance inspections at retail establishments were announced in 2019, Health Canada targeted all vape stores for inspection, versus 2,000 (of the reported 7,300) convenience stores.
“Health Canada is responsible for administering and enforcing the TVPA. In 2019, Health Canada inspectors will be visiting retail establishments, including 1,000 vaping specialty stores and 2,000 convenience stores, to verify compliance with the TVPA.”
– Health Canada’s Letter to Vaping Product Retailers, July 2019
In a follow-up letter (December 2019), non-compliance from specialty retailers was mentioned but no mention was made of any findings from the convenience channel.
With respect to noted non-compliance in the specialty channel, we refer to our earlier statement, noting that Health Canada has made it difficult for the industry to proactively address non-compliance issues. The regulatory body has not provided clear interpretation or subsequent pathways for further understanding and interpretation of those compliance standards and regulations, leaving any questions and/or attempts at addressing potential non-compliance concerns until AFTER an official inspection.
In other words, without clear interpretation of the prohibition(s) in question, it is no surprise that it has been difficult for retailers to be compliant in advance of their first official inspection.
How is it possible to determine the efficacy of existing regulations when the above issues still exist with enforcement and the approach has been largely focused on the specialty channel instead of addressing all vape product retailers as a holistic group?
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
Are the new restrictions on nicotine concentration levels sufficient to protect youth and non-users of tobacco products from nicotine exposure? If not, what additional measures are needed?
We support the 20 mg/ml federal nicotine restriction. This has been effective, and responsible retailers and manufacturers have worked to comply.
This limitation preserves the freedom of choice of adult consumers – giving them access to any nicotine variations under 20mg and to a wide variety of flavours in specialty stores – and still allows for a viable alternative to combustible tobacco.
Has scientific evidence emerged in this area since the legislation was enacted in 2018 that points to the need for additional action or further restrictions?
The availability of peer-reviewed scientific data continues to improve, yet Health Canada does not seem to consider it.
While, as noted, we support the ban on any promotion of confectionary, dessert, cannabis, soft drink, and energy drink flavours in S30.48 and Schedule 3 of the TVPA, it is important to acknowledge that restrictions to only mint and tobacco flavours come from a standpoint or belief that mint and tobacco will appeal less to young persons, rather than a public health standpoint or a proper chemical toxicant assessment of flavours in vaping products (which are available and should be used to affect manufacturing standards from a public health lens).
Also, the viability of recommending vaping products for combustible tobacco smoking cessation has never been considered publicly by Health Canada, despite recognition elsewhere in the world.
Not to mention, positioning these products as a way to quit smoking in itself makes them less appealing to young people.
The availability of scientific resources about vaping products coupled with Health Canada public survey data should be a focus for adult education.
In addition, using confirmation bias to generate or confirm public opinion is not a solid foundation for regulatory change. Asking “To protect Canada’s Youth, should we restrict flavours in vaping products” will generate confirmation bias from anyone that does not currently use the products – a clear majority in the country.
Protect the health of young persons by restricting access to vaping products
Are measures in the Act sufficient to prevent youth from accessing vaping products? If not, what more could be done to restrict youth access to vaping products?
We believe that sufficient controls have been implemented to regulate the age of majority purchases of vaping products, however, it should be noted that these controls aren’t in sync [7] [8] with cannabis regulations.
If these restrictions are sufficient for one industry (cannabis), which involves the inhalation of potentially addictive and harmful substances, why then is it not sufficient for the other (nicotine), especially considering both industries employ vaping cartridges?
Better guidance from Health Canada prior to enforcement (aforementioned clearer paths to information and more consistent enforcement/interpretation) would be very helpful to pave the way for more proactive protective measures.
All that said, we need to reiterate that in our opinion there is no regulation that exists, or will ever exist, that will prevent youth from attempting to experiment.
Are there other measures that the Government could employ to protect youth from accessing vaping products?
As noted above, the current age of majority regulations and controls seem to be sufficient but aren’t aligned properly with associated cannabis and alcohol regulations when it comes to retail sales.[9]
And again, we need to reiterate that in our opinion there is no regulation that exists, or will ever exist, that will prevent youth from attempting to experiment. That said, it is likely true (albeit hard to track) that youth are still getting their hands on vaping products via friends, family, and black-market purchases.
It is difficult for us to suggest/recommend regulatory action for this, however, enhanced consumer-centric penalties for purchasing vaping products under the age of majority are an option to consider (and not currently part of the TVPA restrictions).
Has scientific evidence emerged in this area since the legislation was enacted in 2018 that points to the need for additional action or further restrictions?
The reason most adults take up vaping is smoking cessation / an attempt to stop smoking combustible tobacco.
And, again, while we support regulation around the promotion of vape flavours, regulation should recognize that flavours remain a predominant reason why adults choose to vape instead of using cigarettes, and smoking cessation rates were higher for those adult consumers who vaped flavoured products.
In Nova Scotia, legislation restricting flavours reportedly resulted in a return to smoking for many consumers who had been relying on vaping as an alternative. https://notices.novascotia.ca/files/public-accounts/2021/pa-volume-1-financial-statements-2021.pdf
Prevent the public from being deceived or misled with respect to the health hazards of using vaping products
Are the current measures in place sufficient to prevent the public from being deceived or misled about the health hazards of vaping products?
This is a discussion that needs to go both ways. The health hazards of using vaping products need to be circulated widely (which Health Canada does), but the conversation also needs to include the potential benefits these same products can have for adult consumers.
This is associated with the flavour restrictions discussed above as well. All efforts should be made to ensure consumers are not deceived/are well aware of the health hazards associated with vaping products, but it is also important to acknowledge and discuss the potential repercussions of flavour restrictions and how they may contribute to possible increases in smoking rates.
Ignoring one side of the argument clouds the overall discussion.
Allowing age-gated specialty retailers to communicate government-recommended information about vaping products to legal-age consumers is an easy answer for preventing this information from being broadcast to the public at large, but does not solve the problem of speaking to current tobacco consumers.
Including information about alternative nicotine products inside cigarette packages and with the sale of vaping products seems an adequate suggestion for ensuring that all tobacco consumers can be exposed to truthful information about not only the hazards of smoking but the hazards of other nicotine products and relative risk statements.
We agree and support measures that have Health Canada providing information about vaping in public health settings/quit smoking settings to adult smokers that are trying to quit, but only if their attempts are unsuccessful without alternative nicotine delivery.
Regardless, this information should be available the same way it is made available with other nicotine replacement products (Nicorette) and like-minded medications designed to help smokers quit.
What additional measures would help reduce the misconceptions about the health hazards of vaping products?
Any information that would enhance public awareness of the health hazards associated with smoking, vaping, and other nicotine delivery systems should be made available, however, it would be beneficial for a body of medical professionals to review/confirm the efficacy of the information and, in turn, control the dissemination of information to the appropriate audiences.
Again, our recommendation of including these statements as a part of the disclaimer inside each package of cigarettes and contained in each vaping product would apply.
Has scientific evidence emerged in this area since the legislation was enacted in 2018 that points to the need for additional action or further restrictions?
Regarding the proposed flavour restrictions mentioned in the section’s context, evidence has emerged since 2018 that finds flavour restrictions to be a detriment to Canada’s smoking reduction goals.
“Should flavours be banned in cigarettes and e-cigarettes? Evidence on adult smokers and recent quitters from discrete choice experiment,” published in the British Medical Journal concludes, “A ban on flavoured e-cigarettes alone would likely increase the choice of cigarettes in smokers, arguably the more harmful way of obtaining nicotine, whereas a ban on menthol cigarettes alone would likely be more effective in reducing the choice of cigarettes. A ban on all flavours in both products would likely reduce the smoking/vaping rates, but the use of cigarettes would be higher than in the status quo.”
https://tobaccocontrol.bmj.com/content/28/2/168
The study, “Associations of Flavored E-Cigarette Uptake With Subsequent Smoking Initiation and Cessation,” conducted by Yale researchers concluded that, “adults who began vaping nontobacco-flavored e-cigarettes were more likely to quit smoking than those who vaped tobacco flavours. More research is needed to establish the relationship between e-cigarette flavors and smoking and to guide related policy.” Subsequent commentary observed “While proposed flavour bans are well-intentioned, they have disastrous outcomes. Legislation on vaping flavours must take the facts of smoking cessation and harm reduction into account, and we urge legislators against the widespread implementation of such bans.”
https://pubmed.ncbi.nlm.nih.gov/32501490/
Additionally, San Francisco’s ban on flavoured tobacco product sales was associated with increased smoking among minor high school students relative to other school districts. While the policy applied to all tobacco products, its outcome was likely greater for youths who vaped than those who smoked due to higher rates of flavored tobacco use among those who vaped. This raises concerns that reducing access to flavoured vape products may motivate youths who would otherwise vape to substitute smoking. Indeed, analyses of how minimum legal sales ages for electronic nicotine delivery systems are associated with youth smoking also suggest such substitution.
Difference-in-differences analyses found that San Francisco’s flavor ban was associated with more than doubled odds of recent smoking among underage high school students relative to concurrent changes in other districts.
https://jamanetwork.com/journals/jamapediatrics/fullarticle/2780248
Moreover, there is now data from the Government of Nova Scotia showing that cigarette sales increased a historic 5.6% following the province’s flavour ban. Flavour restrictions causing vapers to revert to smoking is further validated by the province’s vapour product tax collection, which came in $500,000 under budget. Nova Scotia missing its budget target can be attributed to vapers reverting to smoking or purchasing products through either the black-market or out of province vendors.
https://notices.novascotia.ca/files/public-accounts/2021/pa-volume-1-financial-statements-2021.pdf
Further, a scientific blog, “The Case for Flavours in Tobacco Harm Reduction, to Save Lives,” written by Dr. Farsalinos, a leading ENDs researcher, calls for balanced regulation that ensures access to flavoured products. The blog makes the following conclusions:
- Flavours used in ENDS are inextricably linked to smoking cessation
It is clear that flavoured nicotine vaping products are instrumental in aiding adult smokers in their quest to quit smoking cigarettes. In my view, legislators should seriously take this into account, especially when they start considering the regulation of flavour in ENDS.
- Bans of ENDS / flavours will harm, not help individual and population health
Flavour bans equate to a form of prohibition, which is a net negative for society, both in terms of criminal activity and consumer safety. Moreover, the greatest risk is for bans to redirect vapers back to smoking deadly combustible cigarettes.
- Blocking youth initiation of smoking (and vaping) is a priority
While youth access to vaping products is a serious problem, and one that needs to be addressed, it would be misguided to ban vaping flavours to attempt to accomplish the goal of eliminating youth use. Banning flavours would disproportionately harm adult smokers who are trying to quit, which is contrary to their fundamental human rights and right to access all beneficial healthcare options. Instead of bans and prohibition, it would be best if legislators focused more narrowly on youth access at the point of sale and to eliminate flavour descriptors clearly targeting the youth.
- Health professionals play an important role to provide accurate and evidence-based risk communication on ENDS and flavours.
Tobacco control provided the insight that health professionals and in particular, medical doctors have tremendous influence in consumer choices. They can play a highly influential role in curbing tobacco use in any community…
https://thr.ams3.cdn.digitaloceanspaces.com/strapi/0cbd3b34cef86dad0032528c324d2f7b.pdf
Enhance public awareness of health hazards
Have public awareness efforts been effective at educating Canadians about the health risks of vaping products?
These discussions come across as increasingly one-sided and reinforce our point above that this is a conversation that needs to go both ways. The health hazards of using vaping products need to be circulated widely (which Health Canada does), but the conversation also needs to include the potential benefits these same products can have for adult consumers.
This is associated with the flavour restrictions discussed above as well. All efforts should be made to ensure consumers are not deceived/are well aware of the health hazards associated with vaping products, but it is also important to acknowledge and discuss the potential repercussions of flavour restrictions and how they may contribute to possible increases in smoking rates.
Ignoring one side of the argument clouds the overall discussion.
What more could be done to educate Canadians about the health risks of vaping products?
As noted above, any information that would enhance public awareness of the health hazards associated with smoking, vaping, and other nicotine delivery systems should be made available, however, it would be beneficial for a body of medical professionals to review/confirm the efficacy of the information and, in turn, control the dissemination of information to the appropriate audiences.
Again, our recommendation to include these statements as a part of the disclaimer inside each package of cigarettes and contained in each vaping product would apply.
Are there still knowledge gaps to fill with regard to the health risks of vaping products? If so, what areas should research focus on?
Enhanced manufacturing standards and quality assurance in the manufacturing process is an area that has not been adequately addressed.
This does not necessarily affect public awareness, but consumers who choose to vape should have assurances that proper manufacturing standards have been followed.
The concern and focus to date have been on the labelling and optics of the products in question, not on their contents.
Case in point, the health hazards related to specific flavours have never been addressed by Health Canada – with menthol being substantially more harmful than most. These types of details should be made available to the public.
Conclusion
Overall, consistency and a clear, easy, and effective path for communication and discussion between the industry, consumers themselves, and the regulatory bodies, are key.
Apart from that our points can be summarized as follows:
- A flavour ban would result in an increase in smoking rates among youth and adults. Prohibiting the promotion of flavours is effective. Banning flavours outright is not.
- Health Canada should make educational information more accessible to current smokers.
- Young people will continue to experiment regardless of regulations. Controls for access must remain in place in age-gated environments and be well-enforced by the governing body.
- Advertising restrictions are effective in limiting youth exposure and potential inducements to vaping.
- Enforcement must be more consistent and equitable between specialty retailers and convenience and gas retailers, especially when enforcing the age restriction for purchase.
- Interpretation of regulations by government officials needs to be more consistent, and affected parties must be provided a pathway to ask questions prior to enforcement efforts to ensure compliance.
Thank you,
Christina Pan
Chief Operating Officer
Delota Corp. (TSXV: LOTA)
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