The Beginning of the End for Vaping in Canada?


    Canadian vapers face an uncertain future, but not many seem alarmed about the anvil that could soon drop on their heads. A bill is close to passing the lower house of Parliament that is likely to create chaos in the vaping industry, giving the federal agency Health Canada the ability to pass additional restrictions as soon as the bill passes — and even more in the future.

    Part of the problem is a vendor association that has discouraged vapers and vendors from taking an adversarial stance toward Parliament and Health Canada. Another issue is the lack of a powerful consumer group in Canada, like CASAA in the United States, or the British New Nicotine Alliance.

    However, if vapers don’t speak out now — and in numbers — the government will soon pass a law that defines vaping as a health hazard, prevents truthful information from being presented by vendors, restricts honest descriptions and labeling of many flavors, and gives Health Canada carte blanche to ban tanks add other new rules as it sees fit.

    Bill S-5: vaping is a health hazard


    Looking for information about the bill, I spoke with John Haste, who along with his wife Charlene owns a vape shop and online business called VapeMate in Kenora, Ontario. John is a former director of the Electronic Cigarette Trade Association (ECTA), which is a well-run standards body for the industry in Canada. He and Charlene are among the most knowledgeable and capable people in the vaping industry.

    “Canada is in a mess,” John said in an email. “Although Bill S-5 separates vaping products from tobacco by definition, it places vaping products in the Tobacco Act. The Tobacco Act is meant to restrict, limit and preferably eliminate products within that Act because they are bad for you.”

    What does Bill S-5 do?

    There is at least one vendor group in Canada that has defended Bill S-5 as reasonable, and suggested vapers not be concerned about it. That’s hard to understand, because the dangers of the bill are many, and the problems it could cause are huge.

    According to a legal analysis commissioned by ECTA, “Bill S-5, as written, creates a significant risk and potential for complete and total ban based on individual perception and ideology, not science or the best interests of public health. Additionally, it presents a significant number constitutional conflicts.”

    The bill’s purposes are stated clearly:

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

    Get it? It’s all about the kids. When the government defines a product or practice first and foremost as hazardous — especially to kids — everything that follows will attempt to limit, prevent, and punish. And Bill S-5 delivers.

    In an op-ed about Bill S-5, University of Ottawa law professor and tobacco control expert David Sweanor wrote, “When governments think the solution is to be exceedingly and irrationally risk averse about anything that could give smokers viable and dramatically less hazardous alternative products, they have just failed a ‘vision test’.”

    What will Bill S-5 do?

    • Make it illegal for vape shops to truthfully tell customers that vaping is less harmful than combustible cigarettes
    • Allow Health Canada to regulate products in the future as it chooses — and this has already begun. The agency has announced that all vaping products that contain nicotine must have child-resistant caps, including tanks [see below]
    • Eliminate many popular flavors by preventing manufacturers from honestly describing them. It bans flavor descriptions that indicate candy, dessert, and soft drink flavors, for example — and Health Canada will be free to amend the list at any time
    • Probably lead to American tobacco companies moving in and taking over the bulk of the vaping market in Canada. Cigarette companies have the money, regulatory knowledge, and distribution power to overwhelm a small market (or a large one, for that matter!)
    • Violate constitutional rights. Bill S-5 has been criticized by legal experts like the Canadian Constitution Foundation for violating constitutional rights of Canadian citizens

    Where is Bill S-5 now, and what can vapers do?

    Bill S-5 began in the Senate, and is now working its way through the lower house in the Canadian Parliament, the House of Commons. After it is approved by Parliament, it receives royal assent and become law. It amends the existing Tobacco Act (and some other existing laws), and will be called the Tobacco and Vaping Products Act (TVPA).

    John Haste explained the process. The bill has already passed the Senate, where it was introduced. It received its first reading in the House of Commons in June. The next steps are:

    Second reading — the current stage
    Committee stage
    Report stage
    Third reading
    Royal Assent

    “Exactly when each of these stages will occur is unknown and depends on when they are able to schedule the readings,” John says. “Debates on the House floor may or may not be held at different points through the process.”

    “After Second Reading, the House of Commons will determine whether or not the bill needs to go through the Committee State for additional review. More than likely, Bill S-5 will go to Committee and it will likely be assigned to the Standing Committee on Health (HESA). The HESA Committee may or may not take a public consultation period. If a public consultation is held, that is an opportunity to send feedback on the legislation.”

    John also notes that if your MP is a HESA Committee member, it’s especially important to contact them and make your concerns known. If the law has to make it successfully through a committee, it could have a huge impact if one or more committee members know of the businesses and individuals in their riding that will be affected by the law.

    It’s much easier for one or two members of a fairly small committee to hold up the bill than for the same number of MP’s to have an effect on a vote of the whole Parliament.

    Meet, call, or write your!


    However, all vapers and business owners should contact MP’s now. There is very little time to change the course of this legislation.

    Meeting personally with the MP is best — and shop owners and manufacturers should definitely do that — but phone calls can be effective too. Emails will get attention as well.

    Find your MP and their contact information here.

    Sociologist and vaping advocate Amelia Howard created an excellent list of suggestions for business owners meeting with MP’s about Bill S-5. But the suggestions can be adapted for vapers to use in their communications too. Take the talking points and tips and apply them to your own situation.

    Tell your story. Make it clear how vapers and smokers will be hurt by the arbitrary restrictions on truthful speech and flavors. Remind the legislators that they represent all Canadians, including adult vapers who want to keep the products that have helped them; and including smokers, who need accessible, affordable products to choose from when they decide to quit smoking cigarettes.

    Let them know that you don’t appreciate vapers’ health being ignored in favor of misplaced concerns about youth nicotine use. There is no evidence of regular use by large numbers of non-smoking teens in Canada. But Bill S-5 amplifies unfounded fears about kids in order to deny adults widespread access to products that are illegal for kids to buy anyway.

    Sign the official Parliamentary e-petition

    According to John Haste, an official Federal Parliamentary e-petition is a serious tool. The e-petition, he says, is “maintained by the government, sponsored by and read by members of Parliament within the House of Commons once the minimum required signatures have been met.”

    Such a petition has been initiated, asking that Bill S-5 be “halted and reviewed.”

    “We, the undersigned, constituents, call upon the Government of Canada to halt and review Bill S-5 currently making its way through the House of Common. Create a fair and logical category for vape products apart from tobacco,” it states.

    The petition, so far, has just 7,000 signatures, including fewer than 3,000 from Ontario. How many vapers visit vape shops in Ontario every week? Every vaper — and every vaper’s family and friends — should sign the e-petition.

    Health Canada: your comments due by Oct. 27


    When Bill S-5 passes, it hands the specific regulation of all vaping products to Health Canada. The agency can then add or change any product standard or manufacturing requirement it chooses to.

    And the regulation has already begun, with an announcement from the agency that as soon as Bill S-5 is passed, all vaping products that hold e-liquid must be in child-resistant containers. That means that all tanks would have to be child resistant.

    If this ridiculous rule remains, virtually no currently available tanks could legally be sold in Canada. According to ECTA, the rule would be “potentially devastating for small businesses.”

    The agency has also determined that nicotine solution with more than 66 mg/mL of nicotine will be banned. It’s unclear if that is only at the retail level, or if higher nic concentrations would also be prohibited for manufacturers. If that is the case, the cost of e-liquid could rise dramatically

    Health Canada has an open call for public comments on its vaping products regulation. Every vaper in Canada should comment on these proposals, and the others included in the agency’s consultation document.

    ECTA has provided a summary of the proposals, and an explanation of how to make comments on them. It is crucial that Canadian vapers and vendors take advantage of this open comment period to tell Health Canada what they think.

    Vapers, no one is going to fix this for you

    The tank and nicotine regulations are just the first examples of what could to come after Bill S-5 passes. Health Canada will be free to impose death by a thousand cuts on the small businesses that make up the heart of the Canadian vaping industry.

    And if you think you’ll just order your gear and other prohibited products online from other countries, think again. “From the consumer’s perspective,” says John Haste, “they can order tanks online from the U.S. or U.K., or directly from China, if they’d like. But consider this: right now, CBSA {Canada Border Services Agency] is already stopping/inspecting/seizing shipments of e-liquid that are suspected to contain nicotine. This has been a fact for many years. Generally, hardware has had little problem getting through customs.

    “But CBSA is charged to stop ALL products that do not comply with Canadian laws and regulations. What makes anyone think they won’t be engaged to stop tanks that do not have child-resistant tops?”

    Vapers need to get educated, get active, and start making noise. There’s no one doing it for you.

    Despite valiant efforts from the industry group ECTA, and the very small consumer-led Tobacco Harm Reduction Association (THRA), only a focused response from the actual citizens who’ll be most affected will make a difference. That means vapers themselves.

    Canadian consumers, you’re going to have to take care of yourselves.

    Meanwhile, there is at least one major vaping organization that seems to prefer vapers and small businesses stay out of the discussion, and leave it all up to them.

    The Canadian Vaping Association (CVA) has no information on its Facebook updates page advising vendors on how to address the legislation or the Health Canada consultation. They do have a link to a press release explaining how they are working with the government to create better regulations. The most recent updates on Bill S-5 are from April. On CVA’s website, the most recent information on its federal legislation page is from June, and no advice to vendors is provided.

    “CVA and its counsel have had a number of meetings with Health Canada and also with the federal Minister of Health’s office to discuss the issue of e-cigarettes on the national level,” they write. “Progress has been made to ensure that Health Canada recognizes that the CVA is a national not for profit organization that represents retailers, manufacturers, advocates and consumers of the e-cigarette industry.”

    That’s not the kind of progress that helps vapers or small businesses. Canadian consumers, you’re going to have to take care of yourselves.

    Jim McDonald
    Smokers created vaping without any help from the tobacco industry or anti-smoking crusaders, and vapers have the right to keep innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I recently joined the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy