Canada is incredibly confused: Sweanor

The one thing both pro and anti-vapers agree on is the need for regulation—the question is how and by whom should electronic cigarettes be regulated. The discussion on how to regulate the device is multiform: Are e-cigarettes a health product? Who can use them? Where can they be used? Can they be advertised?

Though the jury is still out on e-cigs, legislation continues to be passed across the country. Most legislation applies tobacco laws to e-cigarettes, particularly with regard to advertising.

In the midst of this project Michael Hampartzoumian ordered two 236 mL bottles of Mount Baker Vapor e-juice from an online shop with a store Mesa Arizona, United States. Both the Honey Berries and the Hawk Sauce e-juices contained 3 mg of nicotine.

He said he usually purchased the standard 30mL bottles, which would typically last him a week, but he decided to get bottles that would last him longer—typically one month—to save on shipping costs.

In January, the 24-year old IT student received word that his package had been held up at customs was being sent to Health Canada for testing.

“I was like what? I was so mad I just ripped up the paper,” said Hampartzoumian.

Health Canada then sent Hampartzoumian a letter notifying him that he had imported drugs into the country.

In Canada, e-cigarettes sold with e-juice containing nicotine fall under the Food and Drug Act. The law stipulates that Health Canada’s approval is needed before importing, advertising or selling these products.

In 2013 and 2014, 6,257 shipments of e-cigarettes were refused entry into Canada at the border. In 2015, Health Canada recommended that the Canada Border Services Agency refuse 2,523 commercial and personal shipments of e-cigarette products.

Since 2009, Health Canada says it has responded to more than 300 domestic complaints regarding the unauthorized sale of e-cigarettes.

The majority of these cases have resulted in the issuance of a compliance letter with a request to stop sale.

Overview of Canadian regulation

To date, Health Canada has not approved any nicotine-containing e-fluid or any e-cigarette in general. But e-cigarettes that do not make health claims and do not contain nicotine are legal.

Registered vape shops are allowed to produce their own e-juice and many others may be doing so in private.

The sale and advertising of e-cigarettes with nicotine is illegal, but this is generally not enforced, as they are still commonly available for sale Canada-wide. The problem is that part of the reason that smokers, like Adey Bailey or Michael Hampartzoumian successfully transfer to e-cigarettes is because they are able to control their addiction to nicotine, by slowly decreasing the concentration of the drug. So, what smokers crave is nicotine, but Health Canada has forbidden its use in e-cigarettes.

Health Canada publicly addressed vaping in 2009, advising Canadians not to buy or use the products due to safety concerns. Since then, Health Canada has basically left the file alone.

In 2015, then-Health Minister Rona Ambrose asked the Health Committee of the House of Commons to study e-cigarettes. The report, issued in March 2015, was chaired by Conservative MP Ben Lobb and involved testimony from doctors and tobacco harm reduction advocates from across Canada, including Dr. Gopal Bhatnagar and David Sweanor. The report called for further research, and also recommended creating a new legal framework for e-cigarettes, sold with or without nicotine, banning sales to minors, prohibiting use in federally regulated public places and restricting advertising of the products. It also recommended barring the sale of e-juice flavours (i.e. candy flavour) it felt were aimed at the youth market, and establishing limits on how much nicotine e-juice can contain.

The federal government did not act before the October election and the new Liberal government has not yet addressed the issue. With no regulatory body overseeing the retail market, some retailers have set their own in-house policies.

With the lack of federal regulation, some provinces have jumped into the void to regulate the products. To date Nova Scotia, British Columbia, New Brunswick, Prince Edward Island, Ontario, and Quebec have introduced some form of e-cigarette regulation. Most often these treat e-cigarettes in the same way as tobacco cigarettes by restricting use in public spaces, prohibiting use by minors or restricting advertising to diminish the appeal of e-cigarettes to youth.

NOVA SCOTIA
Nova Scotia was the first province to propose legislation in 2014. It took effect May 31, 2015, banning the sale of e-cigarette to minors, the display or advertisement of e-cigarettes and vaping in public places. Only vape shops prohibiting entrance to minors are allowed to openly display their products.  While the province taxes tobacco products, there is no tax placed on e-cigarettes.

There was fierce debate in the province as to whether such legislation was appropriate, considering the lack of concrete evidence on the health risks of e-cigarettes. The main goal of the provincial government was to discourage the appeal of e-cigarettes to youth as there was concern e-cigarettes may entice non-smokers to take up smoking. Nova Scotia vape shop owners argued that the government was being too harsh and would ultimately restrict smokers from being able to access or use a tool that would help them quit.

BRITISH COLUMBIA
On May 14, 2015, British Columbia became the first province to actually enact anti-vaping laws. Like Nova Scotia it treated e-cigs similarly to tobacco products. It banned selling e-cigarettes and e-cigarette products to minors, vaping in institutions, public buildings, or outdoor patios of bars and restaurants. It also barred vaping in a car when youth 16 and under are present.

NEW BRUNSWICK
On July 1 2015, New Brunswick enacted a similar ban to BC, but went a bit further. The province made it illegal to vape within 20 metres of children’s playgrounds and outdoor sports areas. It also restricted vaping within nine metres of a public walking or jogging trail and within the boundaries of provincial parks except for rented campsites, golf courses and designated areas within the park.

PRINCE EDWARD ISLAND
Only nine days after New Brunswick, Prince Edward Island introduced two bills that eventually came into force in October 1, 2015. Like other provinces it banned sales to minors and use in public spaces. Construction sites were also added to the list of areas where vaping is illegal.

 

QUEBEC
Quebec has introduced similar regulation as Nova Scotia, regulating e-cigarettes like tobacco. The legislation extends the vaping ban from bars and restaurants to include patios, and subjects e-cigarettes to the same rules as other tobacco products. Flavoured tobacco and smoking in a vehicle with someone under 16-years-old present are also prohibited. It also bans vaping at exterior playgrounds and sports fields used by kids.

ONTARIO
Ontario enacted legislation in March 2016; e-cigarette and medical marijuana users in Ontario will be banned from smoking or vaping anywhere regular cigarettes are prohibited – all enclosed public places, workplaces, and many outdoor areas. Its ban on selling e-cigarettes to minors under 19 was enacted before this, on Jan. 1, 2016.

ALBERTA
As of January 2016, Alberta had no provincial regulatory framework for e-cigs. Several city councils, including those in Edmonton and Calgary, passed bylaws to ban smoking e-cigarettes anywhere cigarette smoking is banned. In Calgary, there is an exception which allows the smoking of e-cigarettes inside vape shops. The municipal government promised to follow up on the effectiveness of the bylaw, and on whether people should continue to be allowed to vape in stores. The bylaw has been in effect since January 2016.

MANITOBA
The Manitoba government proposed Bill 30 to regulate e-cigarettes similarly to tobacco, but admitted more research needs to be done on the subject. The bill has yet to become law. The bill would prohibit the sale of e-cigarettes to children, restrict advertising and prohibit use in most indoor public places. However, the bill includes an exemption for vape shops and adult-only establishments (i.e. bars, casinos).  According to the Canadian Vaping Association, Bill 30 has gone to public consultation.

NEWFOUNDLAND AND LABRADOR
In May 2015, then Newfoundland Premier Paul Davis said his government was working on legislation to regulate e-cigarette sales in the province. Davis lost the November 2015 election and little has been discussed on the state of e-cigarettes or vaping since then. Some schools, however, have introduced policies banning vaping on school property, while some e-cigarette shops have also introduced their own policies banning sales to minors under 19.

SASKATCHEWAN
There is no provincial regulation in Saskatchewan as of 2016. So far, it follows Health Canada’s rules but is not clamping down, even as the industry grows.

NUNAVUT
Nunavut’s territorial tobacco legislations have banned e-cigarettes that look like cigarettes or cigars. This includes many e-cigarettes that are currently on the market. E-cigarettes that do not look like cigarettes or cigars are not regulated.

YUKON
The Yukon does not regulate the use of electronic-cigarettes.

 

NORTHWEST TERRITORIES
The North West Territories currently has no regulation in place regarding the distribution or use of e-cigarettes.

Absent research

A problem with drafting new legislation is that the lack of research makes it easy for both vaping aficionados and anti-vapers to counter the regulation. The government has little ground to stand on because the data simply is not there.

The only Canadian study dedicated to e-cigarette use was the Propel Centre study and that analyzed data from a 2013 survey. It was also not a scientific study.

McGill University medical professor and cardiologist at the Jewish General in Montreal, Mark Eisenberg, received funding by the Canadian Institutes of Health Research to lead a study on  how effective electronic cigarettes are as a smoking cessation device. His team will split 486 smokers into three groups: nicotine e-cigarette with counselling, non-nicotine e-cigarette with counselling and only counselling.

Public Health expert, Caroline Franck, is one of the lead researchers on the study. She explained that the smokers will be provided with e-cigarettes for 12 weeks and will be checked up once after six months and again after one year. The study will monitor whether the smokers are continuing with e-cigarettes, have returned to tobacco cigarettes or have quit smoking entirely.

 

The study will also monitor whether the smokers are hospitalized for lung or heart issues, or whether any other side effects are noted by the e-cigarette groups. It is scheduled to start in March 2016 and is expected to last five years.

Franck said she was excited by the potential for better understanding e-cigarettes, but said regulation in Canada should not rely on his study alone. Instead, she says that Eisenberg and the team want the study to be used as a model for bigger, more involved studies further down the road if it demonstrated potential for e-cigarettes as a smoking cessation device.

Vaping versus smoking

David Sweanor is a long-time smoking cessation advocate and a law professor at the University of Ottawa as well as a member of Centre for Health Law Policy and Ethics. He said the problem with regulating e-cigarettes in the same way as tobacco products is that it suggests that they are equally dangerous.

“It’s just wrong,” said Sweanor.

“We are giving an environmental message to smokers ‘you may as well keep smoking’, cause we think e-cigarettes are just as bad,” said Sweanor.

As all provinces struggle to regulate electronic cigarettes, the actual inconsistencies of provincial regulation highlight the disconnect between legislation and reality in a fast-growing industry.

The regulatory battle seems almost unwinnable: provincial and municipal regulations thwart smokers from trying to shake a life-threatening addiction; regulations that do exist aren’t really being enforced; and e-cigarette companies have free reign.