New restrictions on vaping seek to curb consumer appetite

As new information about the health impacts of vaping becomes available, along with the rising prevalence of underage vaping, many jurisdictions in Canada are moving to restrict the sale and advertising of vaping products, including instituting bans on flavoured vaping products. In response to these concerns, Health Canada is considering the best approach to reduce youth demand for and use of flavoured vaping products.

What you need to know

Currently, vaping products are regulated by various federal and provincial legislation:

  • At the federal level, Health Canada has proposed additional restrictions on the manufacture and sale of flavoured vaping products1
  • At the provincial level, the following provinces have restricted, or have indicated an intention to restrict, flavoured vaping products:
    • British Columbia has announced incoming rules that will restrict the sale of flavoured pods to specialty vape stores;
    • Ontario has proposed regulatory changes to restrict the sale of flavoured vaping products to specialty vape stores and cannabis retail stores;
    • Nova Scotia has recently amended its regulations to entirely ban the sale of flavoured vaping products, effective April 1, 2020; 
    • Prince Edward Island currently prohibits the sale of vaping products that contain prescribed flavouring agents; and
    • Québec is considering a ban on flavoured products, while most other provinces are being urged to consider the same by health officials and activists.
  • Although some provinces have taken steps to ban flavoured vaping products and others are considering similar approaches, the law in this area is developing quickly. Whether Canada chooses to implement a nationwide ban remains to be seen.

The regulatory treatment of vaping products across Canada

“Vaping” describes the practice of inhaling vapor that is produced in an e-cigarette from the heating of an e-cigarette solution (“e-juice” or “vape juice”). Currently, vape juice can be purchased in most provinces in a variety of flavours, including candy and fruit flavours that appeal to youth2.

Rising vaping rates among Canada’s youth and growing health concerns are prompting regulators to enact new restrictions to combat youth vaping, including restricting or banning flavour additives. As set out below, the law relating to the production and sale of vaping products is still developing, particularly when it comes to flavoured vaping products, and the level of restriction in provincial regulation is variable across the country.

Canada

The federal government has instituted the Tobacco and Vaping Products Act (TVPA) to regulate the manufacture, sale, labeling, content, and promotion of tobacco and vaping products3. Under TVPA, no person can sell tobacco or vaping products to a young person under eighteen—though the minimum age has been adapted by all the provinces to conform with their provincial age of majority. TVPA:

  • imposes labelling and packaging requirements for vaping products;
  • restricts certain advertising and promoting practices; and
  • prohibits selling vaping products in vending machines (not yet in force).

Health Canada announced plans to further restrict advertising that is accessible to young people on February 5, 2019. At that time, it also launched a public education campaign to educate teens as to the consequences of vaping to their health4.

On October 31, 2019, Health Canada released a letter to retail associations concerning the rise of vaping among Canadian youth, in which Health Canada indicated that it is considering additional restrictions on the manufacture and sale of flavoured vaping products5.

In December 2019, Health Canada released the results of a consultation, in which it sought input with respect to current vaping regulations, including a potential prohibition of vaping products with certain flavours6. One emerging theme of the consultation was a call for increased enforcement of the TVPA and the need to explicitly prohibit the promotion (rather than sale) of flavoured products, and the promotion and sale of products with design features that appeal to young people7. Subsequently, Health Canada published the proposed Vaping Products Promotion Regulations on December 21, 20198. The proposed regulations are set out in two parts: (1) prohibition of promotion of vaping products and brand elements by advertising that can be seen or heard by young persons, including the display of vaping products at points of sale visible by young persons; and (2) requirement that all vaping advertising include a health warning. Such proposed measures are intended to mitigate the impact of vaping product promotion on young persons and non-users of tobacco products. Various aspects of the proposed regulations would not apply to retail establishments where provincial or territorial legislation has already been enacted to restrict vaping promotion, to not conflict with provincial and territorial promotion restrictions. The 30-day public consultation period has ended, but the final set of regulations is yet to be published.

British Columbia

In British Columbia, the Tobacco and Vapour Products Control Act currently prohibits9:

  • vaping anywhere that smoking is currently banned, with the exception of vape stores;
  • selling vaping products anywhere that tobacco sales are prohibited; and
  • promoting vaping products in stores, except under restricted circumstances at point of sale if such promotions are not visible to minors inside the store or persons outside the store;
    • despite this prohibition on promotion, signs that conform to regulatory requirements showing the availability and price of vaping products are permitted.

On November 14, 2019, the BC government announced a 10-point plan to protect young persons from vaping products, including imposing a restriction on the sale of flavoured products, which will only be permitted to be sold in vape-specific stores (age restricted)10. The province’s plan also includes:

  • increasing the PST payable on vaping products (including cannabis vape juice) from 7% to 20%11
  • new labelling and packaging requirements, including the need to contain health warnings;
  • limiting nicotine contents in vape juice to 20 mg/mL nicotine; and
  • restricting the ability to advertise vaping products in public places that will be visible to children and youth, like billboards, retail outlets, public transportation or parks.

Alberta

While Alberta has not enacted provincial legislation to regulate vaping products, the province launched a review of its Tobacco and Smoking Reduction Act12 on November 1, 2019 and resulting changes to the legislation are set to be proposed this spring13.

Absent provincial legislation, several municipalities have passed by-laws, many to restrict vaping in public spaces, though none has legislated with respect to the sale of flavoured vapes. Nevertheless, Alberta Health Services released a bulletin on July 29, 2019 that warned against the use of flavoured vaping products, stating that flavour additives “may actually make the products more harmful”14.

Saskatchewan

Saskatchewan amended its Tobacco Control Act (now the Tobacco and Vapour Products Control Act), to bring the regulation of vaping products in line with existing tobacco legislation15. The amendments ban:

  • the promotion or display of vaping products:
    • in general access stores (i.e. not age restricted) where vaping products are sold (except for signs that conform to regulatory requirements showing the availability and price of vaping products);
    • in an area (e.g. windows) of a store where vaping products are sold; and
    • on outdoor signs (e.g. billboards, benches, and vehicles); and
  • the use of vaping products in and around public buildings, including schools16.

The amending act17 provides the province with the ability to restrict the sale of flavoured vaping products by regulation, but such sections of the amending act have yet to come into force.

Manitoba

Manitoba’s Smoking and Vapour Products Control Act18, and the Smoking and Vapour Products Control Regulation prohibit19:

  • vaping in indoor public spaces;
  • displaying vaping products visible to children in stores where vaping products are sold; and
  • advertising in certain areas (similar to the bans on advertising of tobacco):
    • any place that vaping products are sold (except for signs that conform to regulatory requirements showing the availability and price of vaping products),
    • any place that children are permitted access,
    • outdoor signs of any type (e.g. billboards, benches, vehicles), and
    • inside a building or other structure or vehicle if the advertisement is visible from the outside.

Manitoba has not banned flavoured vaping products.

Québec

Québec’s Tobacco Control Act applies to harvested tobacco in any form, including electronic cigarettes and any other devices of that nature that are put to one’s mouth to inhale any substance that may or may not contain nicotine20. As such, the Act prohibits:

  • selling vaping products wherever tobacco sales are banned;
  • vaping in any location where smoking is banned;
  • displaying vaping products in public view (except in specialized vaping product stores which are age restricted, and such displays are not visible from the outside); and
  • advertising vaping products in various manners, such as advertising that is directed at minors, false or misleading, lifestyle advertising, testimonial or endorsements, uses a slogan, refers to persons, characters or animals, contains graphics (with limited exceptions), and outdoors.

Despite the advertising restrictions, signs that conform to regulatory requirements showing the availability and price of vaping products are permitted advertising within a store that sells vaping products. All prohibitions applying to tobacco promotion likewise apply to vaping products.

In late November 2019, Québec’s Health Minister stated that new measures are being determined by a task force, which will look specifically at tax measures and the accessibility of flavours.

Ontario

Ontario has enacted the Smoke-Free Ontario Act, 2017 and Ontario Regulation 268/18 (made under the Smoke-Free Ontario Act, 2017), which currently prohibit21:

  • selling vaping products wherever tobacco sales are banned;
  • selling products prescribed as a “flavoured vapour product”; and
  • promoting vaping products anywhere other than vape stores and cannabis retail stores (effective January 1, 2020).

On November 27, 2019, Ontario’s new Bill 151, the Smoke-Free Ontario Amendment Act (Vaping is Not for Kids), 2019, had its first reading22. The key proposed changes include:

  • prohibiting the promotion of vaping products in any manner;
  • broadening the restriction on sale of flavoured vaping products to a general prohibition, carving out prescribed flavours that may be permissible;
  • prohibiting the sale of vaping pods/liquids that contain more than 20 mg/mL of nicotine;
  • restricting sale of vaping products to specialty vape stores, which requires the approval of the board of health of the area in which the store is located; and
  • requiring Ontario Health to prepare an annual report to the Minister respecting youth vaping and making policy recommendations to reduce youth vaping rates.

More recently on February 28, 2020, the province posted further proposed regulatory changes to O. Reg. 268/1823:

  • restricting the sale of flavoured vaping products to specialty vape stores and cannabis retail stores, carving out unflavoured, menthol, mint and tobacco flavoured products, which may continue to be sold by other retailers;
  • prohibiting product displays and promotions in specialty vape stores that would be visible from the outside of the stores; and
  • restricting the sale of vaping products that contain more than 20 mg/mL of nicotine to specialty vape stores.

Nova Scotia

Nova Scotia’s Smoke-Free Places Act24 prohibits smoking (including vaping) in all indoor workplaces and public places, select outdoor public space, and licensed outdoor areas such as patios.

The Tobacco Access Act25 and Regulations26 govern the sale and promotion of tobacco (including vaping products) in the province. The Act and Regulations prohibit promoting or displaying vaping products, except in vape specific stores. Despite this restriction, signs that conform to regulatory requirements showing the availability and price of vaping products are permitted. The Regulations have been recently amended, and effective April 1, 2020, Nova Scotia will become the first province to entirely ban the sale of flavoured vaping products27.

Additionally, Bill 219: An Act to Amend Chapter 14 of the Acts of 1993, the Tobacco Access Act was introduced on October 30, 201928. If passed, this Bill will prohibit the sale of e-cigarettes except in vape stores.

Newfoundland and Labrador

In Newfoundland and Labrador, the Tobacco and Vapour Products Control Act29 bans:

  • selling vaping products wherever tobacco sales are banned; and
  • promoting or displaying vaping products, except in vape specific stores;
    • despite this restriction, signs that conform to regulatory requirements showing the availability and price of vaping products are permitted.

This province prohibits the sale of flavoured tobacco, but has not regulated the sale of flavoured vaping products.

Prince Edward Island

PEI has recently amended the Tobacco and Electronic Smoking Device Sales and Access Act, effective beginning March 1, 202030. The Act prohibits:

  • selling vaping products to persons under 21;
  • selling vaping products wherever tobacco sales are banned;
  • selling vaping products outside of age restricted tobacconist shops (i.e. stores whose primary business is the retail sale of tobacco and/or vaping devices);
  • selling vaping products that contain prescribed flavouring agents;
  • promoting vaping products at the till or outside (but signs that conform to regulatory requirements showing the availability and price of vaping products are permitted); and
  • advertising in a way that is misleading as to the health effects of the device.

New Brunswick

In New Brunswick, the Tobacco and Electronic Cigarette Sales Act currently prohibits31:

  • selling vaping products wherever tobacco sales are banned; and
  • promoting or displaying vaping products, except in vape specific stores;
    • despite this restriction, signs that conform to regulatory requirements showing the availability and price of vaping products are permitted.

New Brunswick does not restrict or ban the sale of flavoured vaping products.

Conclusion

As teen vaping rates rise alongside health concerns, pressure is mounting across Canada to implement laws that curb teen vaping rates. Although some provinces have taken steps to ban flavoured vaping products and others are considering the same, the law in this area is developing quickly. Whether Canada chooses to implement a nationwide ban remains to be seen.

_________________________

1 Canada Gazette, Part I, Volume 153, Number 51.

2 Government of Canada, “Minister’s Letter to Retail Associations Concerning Youth Vaping” (October 31, 2019).

3 SC 1997, c 13.

4 Government of Canada, “Health Canada Proposes Stricter Advertising Rules to Tackle Youth Vaping” (February 5, 2019).

5 Government of Canada, “Minister’s Letter to Retail Associations Concerning Youth Vaping” (October 31, 2019).

6 Government of Canada, “What We Heard: Reducing Youth Access and Appeal of Vaping Products, Consultation Summary” (December 2019).

7 Ibid at 8.

8 Canada Gazette, Part I, Volume 153, Number 51.

9 RSBC 1996, c 451.

10 B.C. Ministry of Health, “Vapour Products Intentions Paper” (December 2019).

11 B.C. Ministry of Finance, “Notice to Sellers of Vapour Products PST Rate Increase to 20%” (December 2019).

12 SA 2005, c T-3.8.

13 Alberta, “Tobacco and Smoking Reduction Review” (November 2019).

14 Alberta Health Services, “Are You Vaping, Or Do You Know Someone That Is?” (July 29, 2019).

15 SS 2001, c T-14.1.

16 Saskatchewan, “Saskatchewan’s Tobacco Control Act to Limit Vaping to Protect Youth” (November 5, 2019).

17 Tobacco Control Amendment Act, 2019, SS 2019, c 32.

18 CCSM c S150.

19 Man Reg 174/2004.

20 CQLR c L-6.2 (updated to December 31, 2019).

21 SO 2017, c 26, Sch 3.

22 Bill 151: An Act to Amend the Smoke-Free Ontario Act, 2017 with respect to activities related to vapour products, 1st Session, 42 Legislature, Ontario, 68 Elizabeth II, 2019.

23 See Ontario’s Regulatory Registry.

24 SNS 2002, c 12.

25 SNS 1993, c 14.

26 NS Reg 9/96.

27 Nova Scotia, “Vaping”.

28 2nd Session, 63rd General Assembly, Nova Scotia, 68 Elizabeth II, 2019.

29 SNL 1993, c T-4.1.

30 RSPEI 1988, c T-3.1.

31 SNB 1993, c T-6.1.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

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