Physicians for a Smoke-Free Canada (PSC) is calling on Health Canada to strengthen its enforcement of federal health law and to put a stop to youth-appealing product designs and misleading, lifestyle, and testimonial advertisements for vaping products.
“Almost a year has passed since Parliament legalized the sale of nicotine vaping products,” explained Neil Collishaw, PSC’s research director. “As predicted, the adoption of the new Tobacco and Vaping Products Act (TVPA) opened the door to multinational tobacco companies and resulted in aggressive marketing campaigns aimed at recruiting new users to these addictive products. Unfortunately, Health Canada is not using the authorities given to it by Parliament to ensure that these advertisements stay within the promotional constraints set down in the law.”
Although the federal government is not collecting data on youth vaping until 2020, surveys conducted by independent researchers have confirmed the experience of parents and educators that youth vaping rates increased dramatically after the nicotine market was legalized in May 2018. A key driver of this increase is believed to be the widespread marketing of small vaping devices (like Juul, Vype and Logic).
“Three months ago, Health Canada acknowledged the problem of increased youth vaping, and proposed to introduce further restrictions on where vaping ads could be displayed,” recalled Mr. Collishaw. In its recent forward regulatory plan, however, the department estimates that these regulations will take at least 18 months to put in place.
“Rather than deferring action until there are new regulations to restrict where vaping products can be advertised, we are asking the department to ensure the law is obeyed with respect to how vaping products can be advertised,” said Mr. Collishaw.
The group has identified four core areas where new statutory restrictions on vaping advertisements are not being complied with
Youth appealing designs.
Health Canada is not enforcing the ban on vaping devices whose design is appealing to young persons. (S. 30.41) Enforcing this restriction would remove from the market those products (like JUUL) which are driving the youth vaping epidemic.
Health Canada is not enforcing the ban on promotions which create a general impression that the products are less harmful than they are. (S 30.42(1-2). Echoing Supreme Court decisions on the need to protect inexperienced consumers, the Quebec Court of Appeal recently ruled that the absence of appropriately detailed and prominent health warnings on tobacco promotions is a form of misleading advertising. Enforcing this restriction would remove advertisements, brand activations and social media posts where warnings do not meet the standards established by court.
Health Canada is not enforcing the ban on advertisements which communicate risk and daring, aspects which trigger the ban on ‘lifestyle advertisements’ in the law (ss 2 and 30.2). Current vaping products make direct and indirect appeals to the significant risks associated with nicotine use. A strong enforcement of the ban on lifestyle advertisements would remove most advertisements.
Health Canada is not enforcing the ban on the use of testimonials and endorsements in vaping advertisements. (S. 30.21(1). Vaping companies are engaging young people as brand activators, distributors and social influencers to promote vaping devices through face to face and on-line contact, often in exchange for gifts or money, a practice which is also contrary to the TVPS (s. 30.6). Enforcing these restrictions would protect young people from this commercialized peer pressure.
Mr. Collishaw acknowledged that taking these actions will require Health Canada to be more willing to prosecute than it has previously been. “There is a tendency of health regulators to rely on legislative amendments rather than courts to clarify manufacturers’ duties under the law,” he said. “The result, unfortunately, is to put legislators in a constant game of catch-up with Big Tobacco. With the current crisis in youth vaping, it’s time to end this game.”
PSC is also calling for the TVPA to be substantially strengthened with comprehensive restrictions on the promotion of vaping products. It is calling on all federal political parties to ensure that fixing the TVPA is a legislative priority when a new parliament opens next fall.
“Until a more comprehensive ban on vaping ads is in place, Health Canada can nonetheless ensure that there is an end to misleading, lifestyle and testimonial ads, and that products with high youth appeal are removed from the market.”
“Health Canada has a statutory obligation to protect the health of Canadians. It has a duty to enforce this law.”
Backgrounder: Year 1 analysis of compliance of vaping advertisements with the Tobacco and Vaping Products Act