Mandatory Report More Than Five Months Overdue
(Ottawa – November 14, 2022) Today a national health charity applied for a Federal Court order directing Health Canada to complete its overdue review of the Tobacco and Vaping Products Act and to present the results to Parliament.
“The law is crystal clear” said Dr. Atul Kapur, president of Physicians for a Smoke-Free Canada (PSC). “Section 60 of the Tobacco and Vaping Products Act says the Minister ‘must’ conduct a review of the provisions and operations of the law every two years, beginning in May 2021 and ‘must’ present each of these reports to Parliament within 12 months.”
“It is now more than five months past the deadline set by the law for the first report to be made public. It is increasingly apparent that without direction from the Court, the government will continue to disregard its responsibility to disclose the results of its policy choices on the tobacco and nicotine market.”
The obligation to conduct a legislative review of the tobacco and vaping law was imposed during the parliamentary review of Bill S-5. This bill authorized tobacco and nicotine manufacturers to sell vaping products as consumer goods and removed their obligation to demonstrate the safety and effectiveness of these products as smoking cessation therapies. Concerned about the impact of this new market on young people, Senators amended the bill to require biennial legislative reviews. The first report was due on May 23, 2022, the fourth anniversary of the law coming into force.
Dr. Kapur explained that the health charity is seeking a court ruling because of the deliberateness with which the review and report were delayed.
“Two years have passed since Health Canada staff were engaged to conduct the review and since discussions with groups like ours about the process were initiated. The failure to report in time does not appear to result from administrative challenges, but one we see as the result of a deliberate political decision to ignore the law.”
Physicians for a Smoke-Free Canada has monitored the government’s struggle to address the problems caused by its policy shift towards a liberalized nicotine market. “The dramatic increase in vaping and overall nicotine use by young people, the widespread disregard for the law by vape stores, the unashamed sale of products aimed at children, the unfulfilled hopes of an improvement in smoking cessation, the increased evidence of the harms caused by these devices and the inability of the department to provide a timely regulatory response are among the issues that the Minister needs to acknowledge in her report,” said Dr. Kapur. “The sooner that happens, the faster Parliament will be able to strengthen the law.”
“Today we are not challenging the government’s right to regulate the market in a manner with which we or other health organizations disagree. What we are challenging is the government’s decision to ignore its obligations under its own laws to report on the effects of that decision. We expect that after the Federal Court makes this point clear to government, future reports will be tabled in time.”
Physicians for a Smoke-Free Canada (PSC) was incorporated in 1985 as a registered charity. It is represented in this action by Ottawa lawyer, Paul Champ.
Link to Notice of Application
The Tobacco and Vaping Products Act (TVPA) requires ‘the Minister’ to prepare and table a report on the provisions and operations of the law every two years. The first report was due to be tabled by May 23, 2022, but this has not yet happened.
- The TVPA was established through Bill S-5, which was introduced to Parliament in November 2016 and received Royal Assent in May 2018.
- During the review of Bill S-5 by the Senate Committee on Social Affairs, Science and Technology in 2017, an amendment was proposed by Senator Seidman to require Health Canada to report every 2 years on the provisions and operations of the Act. The government agreed to the amendment, but asked that it be altered so that it was provided with 3 years before the first reviewwas prepared, and a further year before the report would be tabled.
- The clause in question reads as follows: 1 (1) The Minister must, three years after the day on which this section comes into force and every two years after that, undertake a reviewof the provisions and operation of this Act. (2) The Minister must, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament
- Bill S-5 was proclaimed on May 23, 2018. The Minister was thus obliged to start on the reviewno later than May 23, 2021 and to report to Parliament no later than May 23, 2022.
- Between 2018 and May 2022, the Minister responsible for the Act was the Minister of Health. On May 26, 2022, by Order in Council, this responsibility was transferred to the Minister of Mental Health and Addictions and Associate Minister of Health. (PC 2022-0549)
- By November 2020, Health Canada had appointed an official to lead the development of the legislative review of the TVPA.
- On January 18, 2021 Health Canada officials informed NGOs that work had commenced on the legislative review and that consultations within and outside government would take place. During this meeting, NGOs were also informed that the first report would be focused on youth vaping only, but that they would turn to other topics in subsequent reports.
- On March 16, 2022 Health Canada launched a public consultation. PSC raised concerns about the delay in its response and also about the proposed scope of the report. The consultation period ended on April 27, 2022.
- By May 23, 2022, the report had not been tabled in the House of Commons or Senate.
- On June 7, 2022, Senator Judith Seidman asked in the Senate about when the report on the legislative review could be expected. On behalf of the government, Senator Mac Gold said he would inquire and report back.
- On June 8, 2022, Don Davies, MP asked the Deputy Minister of Health (Dr. Lucas) whether the report had been initiated and when. Dr. Lucas replied that it is “aimed at completion later this year.”
- On November 2, 2022, Senator Gold tabled a delayed answer to Senator Seidman’s Question. ‘”In March and April 2022, Health Canada sought input from Canadians to inform this review and is reviewing the feedback received. The final report will be tabled in Parliament in fall 2022. It will also be made public on Canada.ca.”
- The TVPA requires the Minister to initiate a second review by May 23, 2023, and to table it in Parliament by May 23, 2024.