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SOCI - Standing Committee

Social Affairs, Science and Technology




OTTAWA, Wednesday, April 12, 2017

The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill S-5, an Act to amend the Tobacco Act and the Non-Smokers’ Health Act and to make consequential amendments to other Acts, met this day at 4:15 p.m. to resume consideration of the bill.

Senator Kelvin Kenneth Ogilvie (Chair) in the chair.


The Chair: I would like to welcome you to the Standing Senate Committee on Social Affairs, Science and Technology.


I am Kelvin Ogilvie from Nova Scotia, chair of the committee, and I invite my colleagues to introduce themselves, starting on my left.

Senator Eggleton: Senator Eggleton from Ontario, deputy chair of the committee.

Senator Neufeld: Senator Neufeld from British Columbia.

Senator Frum: Linda Frum from Ontario.

Senator Dean: Senator Dean from Ontario.

Senator Hartling: Senator Hartling from New Brunswick.


Senator Petitclerc: Chantal Petitclerc from Quebec.

Senator Cormier: René Cormier from New Brunswick.


Senator Stewart Olsen: Carolyn Stewart Olsen from New Brunswick.

Senator Seidman: Judith Seidman from Montreal, Quebec.

The Chair: For the benefit of everyone, I note that we are meeting with regard to Bill S-5, An Act to amend the Tobacco Act and the Non-smokers' Health Act and to make consequential amendments to other Acts.

Today, we are delighted to have the Honourable Jane Philpott, our Minister of Health. With her are the officials at the table. I understand an appropriate number of backup officials are available for instant recall to the event. We thank you all for being here and being willing to help us.

Minister, I will invite you to make your presentation as you wish. Then I will open the floor to questions from my colleagues.

Welcome, minister.


The Honourable Jane Philpott, P.C., M.P., Minister of Health: Thank you very much. I’m very happy to be here today. Thank you for giving me the opportunity to speak to you this afternoon about Bill S-5, an Act to amend the Tobacco Act and the Non-Smokers’ Health Act and to make consequential amendments to other Acts.


As you know, this legislation is a key element in the government's broader tobacco control agenda, which also includes measures like banning menthol in most tobacco products, implementing plain packaging requirements for all tobacco products, and modernizing overall Canada's approach to tobacco control.

Tobacco control, as you well know, continues to be a pressing and important public health issue despite decades of efforts. There are still more than 4.5 million tobacco users in the country. In 2015, 115,000 Canadians became daily smokers.

Tobacco is a deadly product that kills approximately 37,000 Canadians every year from tobacco-related illness. That works outside to one person every 14 minutes. In fact, half of daily smokers in Canada will die prematurely of an illness related to their tobacco consumption. I'm sure you will agree, honourable senators, that this is unacceptable and a pressing public health challenge for us. That is why our government is taking action which aims to drive down tobacco use in Canada from 15 per cent in 2015, to less than 5 per cent by the year 2035.

As you know, as well, the tobacco control landscape is changing. The prevalence of a number of products, including in particular vaping products and their use, is growing rapidly. These are less harmful than tobacco products and they have the potential to bring about public health benefits if they reduce tobacco-related death and disease. However, they also have the potential to bring about harms if they entice youth and non-users of tobacco to develop a nicotine addiction or lead to tobacco use.


Ladies and gentlemen, Senators, it is imperative that we do all we can to prevent Canadians from becoming addicted to a product that kills one in two long-term users.


During my time as a family doctor, I saw first-hand the effects of tobacco consumption. I also saw how challenging it can be for people to quit smoking. We need to help tobacco users stop and we need to discourage potential users from taking up smoking. Canadians expect the government to take action to reduce the number of Canadians who smoke.


To do so, we need to address several issues.


For smokers not ready or able to quit, we need to find ways to reduce the harm nicotine addiction has on their health and the burden that has ultimately on society. As well, we need to think about new technologies and products and how they will affect the future of tobacco use in Canada and how we intend to control it.


That is why we are here today.


Bill S-5 responds to the recommendations made by the House of Commons Standing Committee on Health on its report, Vaping: Toward a Regulatory Framework for E-cigarettes, which received all-party support.


In this light, Bill S-5 aims to strike a balance between protecting youth from inducement to nicotine and tobacco use, while allowing adult smokers to legally access vaping products as a less harmful alternative to tobacco.


To this point, honourable senators, I would like to address some of the feedback that this committee has received to date.

Over the past few meetings I know you have heard from a number of witnesses about vaping products. Some of the witnesses, I understand, have been critical of Bill S-5 because they want to promote vaping products as reduced-risk products.

Bill S-5 does not prohibit the publication of legitimate scientific work in regard to vaping products. Nor does it prohibit people from explaining the relative risk of vaping products, as long as it does not promote a particular product or brand. Bill S-5 promotion restrictions apply to commercial promotion directed at consumers.

Nevertheless, Health Canada has heard these concerns, and we are open to discussing how the relative risk of vaping products might be conveyed to consumers in the context of commercial promotion in a way that is not detrimental to public health.

However, let me be clear, honourable senators. The evidence we have today indicates that while it is true vaping products are less harmful than cigarettes, they are still harmful. They pose harms to the health of Canadians and this should be of concern to all of us. That is why Bill S-5 would make vaping products legally available to adults only over the age of 18 and ensure that they are not marketed as a glamorized inducement to nicotine addiction and tobacco use for young people.

Studies show that the use of vaping products containing nicotine is particularly harmful for young people. It can result in an increased likelihood of nicotine addiction and adverse consequences for brain development. These youth, sadly, may not fully recognize the lifelong implications of this choice.

Also, the marketing of these products around the world includes a broad array of flavours such as candy and chocolate, which may make them particularly appealing to youth.

We have seen marketing, including packaging and product design, using cartoon characters, for example. These appear to be specifically designed to attract our most vulnerable citizens, our youth. This is not acceptable and will no longer be allowed under Bill S-5.


With this legislation, Canada would join the ranks of approximately 60 countries that have already specifically regulated vaping products. These international approaches range from minimal regulation to full bans.


For example, the United States Food and Drug Administration recently finalized its approach to treat vaping products like tobacco products, while the Royal College of Physicians and Surgeons in the United Kingdom has recommended that vaping products be promoted to smokers as a substitute for smoking.

Despite these differences, many jurisdictions, including the European Union and the United States, share our government's objectives of protecting youth from the dangers of nicotine addiction while allowing adult smokers to access vaping products.

Another important component of Bill S-5 is that it supports our government in implementing plain packaging of tobacco products. Independent studies from multiple countries have shown that plain packaging requirements, including the removal of logos, textures and brand images, reduce the appeal of tobacco packages and the products they contain, particularly to youth.

Tobacco packaging is one of the few remaining channels available to the tobacco industry for the promotion of their products. I think we can all agree that tobacco companies should not be able to use packaging to make a product that causes such devastating, indisputable and well-documented health impacts seem appealing.


On May 31, 2016, World No Tobacco Day, my department launched public consultations on the implementation of plain packaging of tobacco products.


The detailed consultation document was open for comments from Canadians for 90 days. Health Canada received an impressive 58,000 responses, the overwhelming majority of which were in favour of plain packaging of tobacco products. These comments will be used to develop a regulatory proposal on which we will also do further public consultation.

In conclusion, honourable senators, I would like to reiterate that Bill S-5 is a balanced piece of legislation aimed at protecting youth from inducement to nicotine addiction and tobacco use, while allowing adults to legally access vaping products as a less harmful alternative to tobacco and supporting the government's efforts to implement plain packaging of tobacco products.


I thank you again for the opportunity to speak to you about Bill S-5. My officials and I would be pleased to respond to any questions that you may have.


The Chair: Thank you very much, minister. I will now identify the colleagues you have at the table with you.

On your immediate left is Anne-Marie LeBel, Counsel, Health Canada Legal Services; on your immediate right is Hilary Geller, Assistant Deputy Minister, Healthy Environments and Consumer Safety Branch; and on her right is Suzy McDonald, Director General, Tobacco Products Directorate. We thank all three of you for being here at the table with us to help with our questions.

I remind my colleagues that we will ask one question per round.


Senator Petitclerc: Thank you very much for being here with us today, Madam Minister.


I will start with a question on flavouring because it is something we have heard about a lot. I know it's a concern of not only the vaping association but also individuals who were strongly attached to the flavours.

Why is this very important? How confident do you feel it is effective in terms of protecting our youth?

Ms. Philpott: May I thank you very much, senator, for your tremendous leadership on introducing this piece of legislation and your strong advocacy on behalf of Canadians in protecting their health. I recognize the tremendous amount of work that you have done on this matter.

In terms of the question on flavours, there has been some clarification in your discussions around the specifics of the legislation and the intention to develop regulations associated with it.

The goal would be not to restrict the ability to make various chemical flavourings. In fact there are, as I understand, almost a limited number of flavours that could be used for vaping products, but to limit the ability to promote a specific flavour which might be particularly appealing to youth. You will see the theme, as you well know, in the legislation over and over again around protecting youth.

It may be that a particular flavour might be seen to be helpful for those who are attempting to reduce smoking and wanting to be able to use a vaping product that has a palatable flavour. What we don't want to see are products that promote themselves to be bubblegum flavour, for example, in a way that young children and youth might feel that this would be a product they would particularly enjoy. Anything we see as an inducement to encourage youth to take up something that would seem to be particularly attractive because of the name of the flavour is something that we would seek to limit.

Senator Seidman: Thank you very much, minister, for being with us today to discuss what is clearly an important piece of legislation.

You touched on an issue at the beginning of your presentation that I would like to explore a bit more with you, if I may, by quoting directly from Dr. Britton, the Director of the Centre for Tobacco and Alcohol Studies and Professor of Epidemiology at the University of Nottingham who appeared before us earlier this week. The direct quote from him is:

The reason that I asked to give evidence today on the Canadian bill is simply the clause about making comparisons with the safety of smoking, because I think it is absolutely vital that health professionals can say to smokers, "We don’t know the long-term risk of these products. It would be much better if you quit all smoking and nicotine use forever, but if you can’t do that, then it is a no-brainer to switch to a less hazardous product." I don’t think there can be any question that electronic cigarettes are less hazardous than smoking.

Then Dr. Hammond, a professor at the University of Waterloo, strongly supported Dr. Britton's position. I would like to qualify it a bit because Dr. Britton acknowledged the following as a bit of an add-on to what he proposed to us. He said:

. . . I think we would all prefer that these products met medicine standards to guarantee minimum risk to users, the reality is that medicines regulation is too complex and too slow, and people are dying as a consequence of the lack of products while we wait for medicinal approval.

Anyway, the compromise we have in the U.K. is that you can’t make a claim that makes it sound like a medicine, but you can say this product is likely to be substantially less harmful than smoking, so make the switch.

I am sorry it was a very long quote, but I think it is really important.

Clearly this testimony puts the whole harm reduction and comparison of risks, namely relative risks, front and centre. Does this bill keep, as it says in the bill, any person such as physicians, for example, from recommending a product using a continuum of risk?

Ms. Philpott: I think you have raised maybe two or three different things, and I will try to touch on each of them.

In terms of the ability of a health care professional, for example, to be able to promote a cadre or a group of products within the relationship between a health care provider and their patient, nothing in this bill would restrict that from taking place. I hope I explained that a bit earlier in my presentation.

The idea would be to limit the promotion of a particular product made by a particular company in a way that would promote the sale of that product. As I said, a doctor and patient could have a conversation where the doctor would say, "If you're not already consuming a vaping product or a tobacco product obviously we don't recommend that you take either; but if you are already a smoker you are absolutely right that while there are harms associated with vaping products we know they are less harmful than tobacco."

Certainly health care professionals should have the ability to have that conversation, and others could have that conversation as well in the context of a place of sale of products. There could be a general conversation about the fact that these products are less harmful than tobacco products, for example.

I will touch on a couple of other things. I hope I have made myself clear on that. I hope my officials will punch me in the elbow if I haven't said it exactly the correct way, but I think I have clarified that properly.

Another thing you brought up was the risks to users. We should emphasize that there are risks associated with the products themselves sometimes in terms of things like batteries exploding and protecting kids from being able to open packages that have nicotine. There have been cases of nicotine poisoning in children associated with vaping products. This provides the ability to be able to address risks to users associated with the equipment itself.

As well you touched on was this matter of therapeutic claims. I hope I mostly covered that one by saying that in general these products can be encouraged in the context of a clinical setting.

In terms of the therapeutic claims, the reality is that this has been discussed here as well. If a product claimed that it would allow you to quit smoking, protect you from cancer or something like that, it would have to go through the Food and Drugs Act to make that specific health claim.

Senator Eggleton: I want to dig down a little deeper on the flavours issue with respect to vaping products because I think the evidence we've had here at our hearings is substantially to the effect that it is less harmful for people trying to get off cigarette smoking. That's not to say it's harmless. In fact the long-term effects, as we've also heard, are still rather uncertain or unknown at this point in time.

In terms of the flavours, you specifically mentioned flavours that could be appealing to youth. You mentioned candy, chocolate and bubblegum, and I can understand that. We do want to keep it away from youth. Some of those same flavours are also attractive to the people who are on a smoking cessation endeavour. Chocolate, for example, would be quite appealing to people of any age.

A lot of what you're going to do here is by regulation. It's not all in this bill. A lot of it will come subsequently. It's a little unclear to me as to how you're going to draw the line on that.

I understand from what you said in your original response to Senator Petitclerc that it's in the advertising and in the promotion where you might prohibit them saying chocolate or bubblegum or candy, but actually you're not going to prohibit any of those flavours for any adult who wants to have them as part of a cessation program. Is that correct?

Ms. Philpott: Yes, that's correct. You're absolutely right that this will be done largely through regulations and there will be, as with any regulation, opportunity for consultation in that process.

My officials may want to clarify this further, but because of the chemical structure of flavouring it would be almost impossible, as I understand it, to actually list what a specific taste is like. There are many types of tastes that something could have, so there would not be anything to prohibit something tasting in a palatable, appealing way which might allow, as you said, someone who is currently a smoker to find it easier to switch to a less harmful product. Again, it's in the spirit of protecting youth to not give these flavours names that would make it sound like they were something appetizing and appealing to young people.

Senator Eggleton: Chocolate could go both ways.

Hilary Geller, Assistant Deputy Minister, Healthy Environments and Consumer Safety Branch, Health Canada: As the minister says, the approach we're taking here is rooted in the quest for balance: balancing the objective of helping smokers to quit while at the same time protecting young people against potentially a lifelong nicotine addiction. It's all about the balance.

I would say it's in recognition of wanting to support smokers that menthol, for example, isn't being banned in vaping products.

Senator Eggleton: It is not.

Ms. Geller: It is not, while at the same time the minister is moving forward to ban menthol in tobacco products. It's the recognition of menthol being potentially helpful to smokers.

You asked, senator, how we draw the line in the future about what may be added. I think the answer to that is simply the evidence that emerges over time. We've been funded to implement this bill. We'll have an active program of market surveillance and intelligence. If we find over time that there are new flavours that are particularly appealing to youth, we could move through a regulatory process to add them to the list. I think that's the answer to that particular question.

Senator Eggleton: Is that "add them to the list" in terms of marketing or promotion?

Ms. Geller: In terms of bans on the prohibition of certain flavours beyond confectionery, for example, that will be banned off the bat.

Senator Eggleton: I like the first answer from the minister.

The Chair: Could you repeat your comment about menthol, please?

Ms. Geller: It's not proposed that menthol is a prohibited flavour.

The Chair: I'm afraid I can't hear.

Ms. Geller: It's not proposed that the promotion of menthol would be on the prohibited list for vaping, even though it will be a prohibited flavour for tobacco.

The Chair: I thought that's what the minister said at the outset but I didn't hear your language clearly enough. We want to be absolutely clear. Menthol is banned from tobacco products but will not be banned from vaping products.

Ms. Geller: That is correct.

The Chair: Thank you very much.

Senator Frum: On the same theme, tomorrow it is greatly expected that you will have a busy day, minister, tabling your legislation on legalizing marijuana. I note that one of the prohibited flavours for vaping is cannabis.

I want to ask you: From a harm reduction strategy point of view, why are you treating cannabis and tobacco differently? Vaping is considered a harm reduction strategy to get people off tobacco. Now we're going to make it legal for people to smoke cannabis. I would say we're going to promote cannabis use in Canada now with this new legislation, but the cannabis flavour in vaping, which is in fact a less dangerous activity than inhaling combustible marijuana leaves, will be prohibited.

There's an inconsistency, it seems to me, between the treatment of tobacco leaves and marijuana leaves, and I'm wondering why that is.

Ms. Philpott: You touched on it to a certain extent as you gave the question by recognizing, as we move forward with the legalization of cannabis, in the same way products like tobacco and even alcohol are legal does not mean they are without risks. Cannabis is a product that we are taking steps to legalize, to strictly regulate, and to restrict access to informed adults. We know it's a product that has associated risks and we would not want to do anything to entice people to take up a product like that.

In the same way the decision was made that on the flavouring of a vaping product we wouldn't want to promote the cannabis flavouring, which might then appeal to a young person who might move from the use of a cannabis flavoured product to the use of cannabis itself.

Senator Frum: Perhaps it can be in the other direction: off of cannabis and on to vaping.

Ms. Philpott: That's an interesting question. In the spirit of harm reduction, as you said, that is something I think we will need to keep an eye on. If it were felt at this point that the introduction of legislation around cannabis becoming a legal product, but a product that we acknowledge has public health risks that need to be understood better, it would be foreseeable down the road. If it were felt that the relative risks of vaping and using a product that was cannabis flavoured somehow offered a public health benefit to be able to take people from dependence on a cannabis product itself, it would be something that could still be done through regulations. It wouldn't require the reopening of the legislation.

At this point, in the spirit of caution, we felt it was best to limit and not to allow that particular flavour promotion.

The Chair: With regard to vaping helping with tobacco, it is because you have nicotine in the vaping product, which is what smokers are addicted to. They're not addicted to the flavour of the smoke or the other chemicals. It's the nicotine.

In the marijuana area you might have to add something more than just a flavour to deal with the equivalent transfer in that kind of situation, but it is an interesting concept.

Senator Stewart Olsen: Thank you for being here to help explain this legislation.

The World Health Organization has a lot of question marks around vaping. Could you outline for me the plans your government probably has for educating the public as to the possible harm that vaping will cause?

In other words, you're not moving forward saying it will be great to switch from tobacco over to vaping without telling people about the possible harm, are you?

Ms. Philpott: As the Assistant Deputy Minister indicated earlier, this legislation will be supported by the appropriate support within Health Canada to be able to address ongoing monitoring, surveillance, evaluation, and how we're doing at getting the message out to the public about relative risks.

Up until this piece of legislation which addresses the important work around plain packaging and around vaping, this has been an area where there has been an absence of federal legislation. This very serious gap has been pointed out to me even in my collaboration with the provinces and territories, I believe eight of whom have now introduced vaping legislation within their provincial jurisdictions.

We will join 60 countries in developing legislation. You're right that there's a lot of conversation about it. At the World Health Organization and at almost every meeting of health ministers that I've had since I've been in this portfolio, the topic of tobacco control and the topic of e-cigarettes and vaping have come up. There is a tremendous amount of interest in hearing what's working and what isn't working among the different countries.

As Hilary mentioned, we have found a balance in this legislation in acknowledging the potential harms associated but also making sure that it's made available to people as a potential harm reduction tool.

We believe it meets the ability to bring in initial regulations. We will monitor very closely the public education effect we have had both within Health Canada and within the Public Health Agency of Canada that will also work with us on making sure that the message gets out to Canadians.

I'll add one thing. We do have almost $7 million to enhance public awareness of the risks of vaping products. There's a specific dollar amount there attached which I didn't have at my fingertips.


Senator Cormier: My question is about the advertising of negative effects on health. In the brief it presented to the committee, the Canadian Cancer Society recommended that health warnings be mandatory, not only on packaging, but also on cigarettes and tobacco products themselves, as well as on water pipe equipment. Has your department considered this option? If not, why has it not done so?

Ms. Philpott: Thank you for the question. It focuses mainly on tobacco products?

Senator Cormier: Yes.

Ms. Philpott: There will still be warnings on packaging. When it comes to the products themselves, my colleague can enlighten you.

Suzy McDonald, Director General, Tobacco Products Directorate, Health Canada: You want to know if warnings will be displayed on cigarettes themselves?

Senator Cormier: On cigarettes and on water pipes as well.

Ms. McDonald: In February, the minister launched a consultation on the renewal of our federal strategy. This consultation will end tomorrow, and that is exactly the type of question that has been asked. I know that the Canadian Cancer Society mentioned it to the committee. It is certainly an aspect that could be examined.


Senator Dean: First of all, congratulations on this legislation and on the other work that you are doing.

My starting point on this, minister, is that we are dealing with a very harmful product, a deadly product, and the balance you are suggesting between tight regulation and harm reduction sounds right to me. I think you have the right mix there.

There's a regulatory and a public policy lens on this. We also have a rapidly growing commercial interest and disruptive technologies, if I can call them that. We know that disruptive technologies are innovative but they're also unpredictable.

We also know that in the world of regulation we occasionally deal with wilful avoiders or inadvertent avoiders. Are you fairly confident that the regulatory regime that you're building around this is flexible enough, responsive enough and predictive enough to capture at least the things that are foreseeable right now?

Ms. Philpott: I accept your thanks, but I will say that the thanks should also go to the Senate and particularly to your colleague who introducing this bill in the Senate. I also want to emphasize what you said about this being a deadly product and the importance for all parliamentarians to take this matter very seriously.

As I've spoken to ministers of health from other countries around the world that have introduced similar legislation, including Australia and the United Kingdom, it has been emphasized to me the tremendous unanimity with which their parliamentary bodies took on this legislation, particularly around plain packaging in the spirit of making sure we take seriously our role in protecting the health of the public. I thank you for emphasizing that.

In terms of the disruptive technologies and the possibility of new things coming along, I think you're absolutely right that it's a very important question. I don't know whether one can ever be entirely certain that we've tried to envision all of the possibilities that might happen in the foreseeable future. Obviously, we would prefer not to have to reopen legislation to address new technologies that might appear in the very near future.

I believe that the department has been quite thoughtful in terms of trying to ensure that this gives enough regulatory authority to address things like the flavouring issues and many of the other issues related to the specifics around things that may come up. In the consultation we're doing on our new tobacco control strategy, which we hope to introduce next spring, we are trying to ensure that we've left enough room to introduce regulatory measures within it.

Ms. Geller: From the point of view of the ADM who runs the branch that's going to have to implement it, the legislation as proposed is a modern up-to-date piece of legislation. It mirrors very important aspects of other modern Health Canada legislation like the Canada Consumer Product Safety Act with which we've had five or six years of experience with now and has been a very effective tool.

We've received many millions of dollars in funding to implement, which is obviously critical to success. If the legislation is passed, it will be implemented by a very experienced group of regulators who deal on a day-to-day basis with similar product classes that require the same mix of education, consumer education, industry compliance, enforcement, inspection, and, quite frankly, a forward-leaning attitude.

The Chair: Minister, you were giving examples of what will be allowed and not encouraged, at the very least, or prevented with regard to advertising or promoting vaping products. If I heard you correctly, you said that vendors involved in the industry would be able to use and display "legitimate scientific works." You didn't use the term "display," but I want to get clear what you meant when you said that those would be available.

I may have one interpretation of that, but many others might have another interpretation. Could you help us with that? The issue of what is prevented in terms of public discussion is a major question around this legislation.

Ms. Philpott: I will start that off and again I may ask my officials to clarify because I know this has been something that you have talked about. We certainly go back to the spirit of trying to protect youth and therefore not trying to have promotions in the general public in a commercial sense.

We recognize there may be opportunities. We want to emphasize the language I used in my notes about the prevention or the prohibitions around speaking to the benefits of a less harmful mechanism of abusing nicotine through a vaping product. A scientific research study comparing the long-term effects of using e-cigarettes versus using traditional tobacco cigarettes could reach as its conclusion the analysis that vaping products are less harmful within that scientific study.

Ms. McDonald: I think it’s important to take a step back. Clause 30.43, which says "No person shall promote a vaping product . . ." and goes on to talk about "health benefits," has been read in isolation. It needs to be read consistently with the part of the act that gives an exemption that says "a literary, dramatic, musical, cinematographic, scientific, educational or artistic work" and goes on to say "a report, commentary or opinion in respect of vaping."

When you look at those two things together, what we are trying to do is prevent the promotion of products using health claims for commercial purposes.

The bill in no way sets out to limit how people talk about vaping products. As our minister tried to explain, a vaping shop could have information, including peer-review journals and other kinds of information available. They can talk about the class of products, but they can't do it in a way that makes it promotion or they can’t do it in a way to sell their products.

They couldn't, for example, put a sign on the wall that says Public Health U.K. says 95 per cent safer, but they could talk about the Public Health U.K. report and the findings, both positive and negative, as long as they are not cherry-picking that information to say 95 per cent safer and this and that. It is understanding the body of the literature and making sure that people are aware of that.

There is a broad range of scope for people to talk about vaping products. There is a broad range of scope for people to have opinions and publish scientific information, but they can't publish an opinion if they are being paid to publish that opinion.

If I am paying you, senator, to blog about my product and say positive things about it, that goes into commercial promotion.

The Chair: I understand that. The specific terminology used was "a legitimate scientific work."

Reading through the lines and in what you are responding would suggest to me that an article appearing in a refereed scientific journal could be made available within the vaping shop but would not be able to be part of formal advertising promoting vaping. Is that correct?

Ms. McDonald: That is exactly correct.

The Chair: If that is exactly correct, that is the language I am going to use from now on.

Ms. Philpott: Good for you.

Senator Hartling: Thank you for being here. It is an interesting topic. It is like a moving target. There are always things to learn.

One of the witnesses from the Non-Smokers’ Rights Association recommended we raise the age to 21 for smoking. I know you have been doing research on that aspect of raising it to 21. I would like your feedback on that, but if you did that on smoking, what about raising the age to 21 for vaping? Do you have any feedback on those issues?

Ms. Philpott: That question speaks to the work we are doing right now in terms of our tobacco control strategy overall. We are proud of how far we have come and the fact that smoking rates are now down to about 13 per cent.

We wanted to introduce the plain packs legislation and think about how we can go further. The department came up with quite an impressive list of other things that could be done that are being considered in other countries, including things like the warnings we spoke about earlier on the cigarettes themselves. One thing suggested for discussion was this concept of raising the smoking age to 21.

I have not seen the analysis yet on the feedback that has been coming as we have been out consulting on the tobacco control strategy, but it is my understanding there would be nothing in this that would prevent us down the road if it was determined that we actually should increase the age. That could still be done. Is that correct?

Ms. McDonald: Yes.

Ms. Philpott: I want to make sure I am saying that correctly.

Ms. McDonald: We would have to reopen the act to do that.

Ms. Philpott: We would have to reopen the act to do that. At this point we don't believe we have enough information.

When we are dealing with substances in general one has to be extremely careful that one doesn’t have unintended negative consequences from decisions. This is something that would have to be taken into very serious consideration, but it is something that has been discussed.

Senator Petitclerc: I want to ask a question about one of the challenges that I see for you with this bill. Everyone who has been involved with the bill for the last few months has seen how quickly the new science and research, not all good methodology, are changing. I want to be reassured about the process that you will follow with this bill to stay on top of all the emerging science, whether it is with the risks or the possible benefits on vaping.

It is about the health of Canadians, whether way or the other, and we want to make sure that it goes in a timely fashion and that we are in touch with all the new research data and scientific evidence that will be forthcoming.

Could you tell us a bit about the process? How you will achieve that? What are your thoughts on that?

Ms. Philpott: It is a good question. It speaks to what one of your honourable colleagues alluded to earlier, namely the rapidly evolving landscape as it relates to available technologies, the number of substances available, and the initiatives of the industry to change products along the way.

The good news is that within the health portfolio we have a fairly broad range of tools to monitor these things. Hilary could speak in terms of what Health Canada is doing, but we work with other partners. We regularly monitor the use of various products.

The Canadian Tobacco, Alcohol and Drug Survey is done every two years. Some of the new data that I referred to earlier came from the most recent CTADS survey. We will continue that. There is ongoing work with various organizations like the Canadian Institute for Health Information and the Canadian Institutes of Health Research that all have ongoing work in the area of substance use and of course our work with the Public Health Agency of Canada to monitor their effects.

Do you want to speak to the specifics within Health Canada as to how we will monitor the outcomes?

Ms. Geller: Briefly, Health Canada thinks of itself as a science and regulatory department by and large. There are exceptions, like our First Nations and Inuit Health Branch. As part of that we have a large number of scientists tasked with either doing independent research or keeping on top of what is going on and informing our regulators.

In recognition of the fact that this is a rapidly evolving field, it is a bit different from our normal product lines. For that reason we have an arrangement, as the minister said, with CIHR, the Canadian Institutes of Health Research. We have already had one session with them and some international experts. We are going to regularize and institutionalize that. We will use that as a mechanism to ensure we are on top of all the latest in emerging evidence.

Senator Seidman: I would like to continue the conversation about monitoring surveillance specifically because there is no question it is an important issue. On Monday we talked with Dr. Hammond about the dangers of renormalizing smoking and the aspects of this being a gateway for youth. People bandy around that issue and a lot of people make nothing of it, but it is a potential to renormalize smoking.

We talked about was the importance of monitoring and surveillance behaviours. I know there is an awful lot left in the regulations of this bill, so I wondered what kinds of data are built in or will be built into the regulations for monitoring and surveillance/

Something I want specifically to ask that also came up is: Will Health Canada have the authority to quickly recall products that might be deemed dangerous?

Ms. Philpott: I will answer the last part of your question first. That is certainly the fact that one of the advantages of getting this legislation in place is that it gives the recall authority to Health Canada if there were any indication that a product was unsafe or that a specific component of it was unsafe.

Hilary referred earlier to the Canada Consumer Product Safety Act that has actually turned out to be a very robust piece of legislation which has been extremely helpful. If you follow Health Canada, we are constantly recalling certain products. It would use the same types of authorities to be able to recall dangerous products, which is good news. It is one of the key reasons why this legislation is so important.

In terms of the earlier part of your question, the plans within the department, Ms. McDonald could speak to that.

Ms. McDonald: We have put in place a fairly robust surveillance and science regime. Hilary spoke a bit about our work with CIHR. In addition, as the minister said, we have the Canadian Tobacco, Alcohol and Drugs Survey. We have a very similar student survey that has been done and will continue to be done with students in grades 7 through 12 or secondaire 1 to secondaire 5 au Québec.

We also have put in place public opinion research or vapers panels, as we're calling them, to make sure that we understand how people are viewing these products, whether or not they are seen as beneficial or harmful, how youth are reacting to the products, and whether or not they are enticed by them. We can continue to gather those data.

In addition, we have done a fairly robust market analysis to understand what the market currently looks like, both the current market and the vape shops, et cetera, which are not currently covered.

I think you were referencing that there are reporting regulations. In tobacco control for many years now we have collected data under the Tobacco Reporting Regulations. Those reporting regulations require industry to report to us on sales data, new research, how they are promoting the products and other pieces of information. We use that robust data all the time to be able to understand what the market looks like and to make good policy decisions.

There is a regulatory authority that would allow us to collect similar data from the vaping industry. It would go through the full regulatory process before it's brought into place, including consultations on CG1 and CG2, but there is an anticipation that we would need to be able to collect some data so that we could really understand what that market looks like and make informed decisions moving forward.

Senator Eggleton: I will go to tobacco this time. A lot of the tobacco commentary that we had in our hearings was related to contraband trade, which seems to be still going apace in the country. Some even suggested that the plain packaging provision might contribute to more contraband being produced, so you might want to comment on that. We would probably all agree that more needs to be done in terms of counting measures to curtail the production of contraband tobacco.

One suggestion that did come forward was that there be some curtailing of the substances used in cigarettes, which is curtailing it or just restricting it to licensed manufacturers. One of the substances that was mentioned was acetate tow. What are your thoughts on that? Do you have any plans to move in that direction?

Ms. Philpott: I will point out several things that I suspect have already been pointed out by others. We know that contraband products already exist in Canada. It is something we need to address regardless of whether it is happening. It is an issue that we are determined to confront.

In countries where plain packaging has been introduced there is no evidence that it has increased the amount of contraband in those countries, including places like Australia, for example. It is very important to make sure that is clear.

We also know there is an abundance of evidence, in the order of dozens and dozens of high quality studies and review articles that have looked at the evidence, to suggest that plain packaging does in fact work in terms of making it less appealing. We need to make sure that is all very clear.

In terms of how to address the contraband, this is one of the topics that we have asked about in our tobacco control strategy consultation. We look forward to getting responses on that. In fact, the issue you addressed around whether or not restrictions on the component parts that are used would be an effective tool in decreasing the amount of contraband is an interesting idea we are currently trying to gather more information on. It might actually be quite an effective tool that we could put in place.

There is nothing in this that would make that any more or less necessary. It would be something that we would pursue regardless.

Ms. Geller: It may be interesting to note that our deputy minister has received a report from the Australian government describing their experience with plain packaging.

In that report Australia mentions that their Department of Immigration and Border Protection, the agency charged with responsibility for customs, has stated there has been no evidence to suggest that tobacco plain packaging has impacted on the illicit tobacco markets since its introduction in 2012.

We will continue to take every measure possible in Canada and monitor, but I think that is important information.

Senator Eggleton: Have you considered the acetate tow possibility?

Ms. Philpott: It is one of the things being considered as part of our broader tobacco control strategy, which we intend to introduce in March. We look would forward to sharing that.

Senator Eggleton: I realize that it is separate from this bill.

Ms. Philpott: Yes, but it is very interesting idea. I'm looking forward to hearing back from the consultations we're doing on that possibility.

Senator Stewart Olsen: This is more a point of clarification for me. When will we see the regulations, and when does the legislation come into effect?

In other words, will we see the regulations before the legislation actually comes into effect?

Ms. Philpott: Timelines are a bit unpredictable, as you know. Many of you have been in this business longer than I have, so you know you can't always count on these things. The sooner the better from my point of view will move things along in terms of the legislation.

Ideally, we hope this will soon move on to the other place and work its way through there. Then it would be after the bill comes into force that it would go to the regulatory process.

Do you want to add anything to timelines and expectations?

Ms. McDonald: No.

Senator Stewart Olsen: For clarification, people in vape shops can legally sell their product before the regulations are finalized.

Ms. Philpott: Can you just clarify that now?

Ms. McDonald: If I’ve understood it, I think the question is: Can vape shops sell their products in the absence of regulations?

Senator Stewart Olsen: Legally.

Ms. McDonald: Once the bill receives Royal Assent, most of the products containing nicotine on the market would become legal and be available for sale in Canada. Some of the authorities would take effect immediately.

Our minister has spoken about the Canada Consumer Product Safety Act, which has recall authorities and other mechanisms available for us to take action if there are issues. Indeed, generally, the regulations would follow after the legislation.

That said, we should be clear there are some aspects that we think are very important. One of those is this idea of child-resistant packaging. We would have the authority to take action immediately on packages that don't have child-resistant packaging as soon as Royal Assent happens.

The Chair: What we hear is that they can continue to sell so long as they don't violate a specific piece of legislation with regard to protecting society, like children in this particular case, with advertising and that sort of thing.

Ms. Philpott: Yes.

Senator Frum: I want to return to the subject of how this legislation will co-exist with the upcoming cannabis legislation that you're going to table.

Our chair/witness made a good point. It's not the cannabis smell or flavour that is addictive; it's THC that is addictive. When I look at the schedule of prohibited ingredients, there are only nine and THC is not one of them.

Did you anticipate or think about in advance how this list of prohibited ingredients will harmonize with the legislation? THC is currently a prohibited substance in Canada as of this minute but it will not be shortly. However, it is not a prohibited ingredient in vaping.

I am having difficulty understanding how the strategy works, how your vaping strategy coordinates with your cannabis strategy.

Ms. Philpott: I'm not sure I entirely understand the question.

Senator Frum: Simply, then, there is a list of ingredients that people will not be allowed to vape, including vitamins, amino acids and caffeine, but it will be legal for vaping vendors to sell THC-loaded vaping devices. That will be legal.

Ms. Philpott: If I understand correctly you are asking about using cannabis products with a vaping device?

Senator Frum: Right.

Ms. Philpott: That would fall under the legislation around cannabis if cannabis were associated with a vaping device.

Senator Frum: I am wondering how that harmonizes with Bill S-5. Other than the cannabis flavour there is nothing about the ingredients in marijuana that are prohibited in this legislation.

Ms. Philpott: Right, but if there were a cannabis ingredient in a vaping product it would be captured by the cannabis legislation. Perhaps you can respond to that better, Hilary.

Ms. Geller: Having THC in a vaping product today would be illegal because cannabis is illegal. Should cannabis be legalized in the future it is similar to the question about marijuana flavour, I think. It is possible it may make sense at that point to consider adding THC to the schedule, along with vitamins, caffeine and other things. That is a potential future action that may need to be taken to harmonize, but at this point in time it's speculative.

The Chair: That was an excellent question, senator.

Senator Frum: I was following up on your point.

The Chair: I think we had a skirting of the issue, but I think we understand because of the way in which things are being handled in today's society until such time as legislation comes forward. We will put it in that category.

Senator Neufeld: I should have probably asked this question of some of the other witnesses who were here, but the minister is here now and I thank her for that. Contraband tobacco has been talked about a lot. Where does what we get in Canada originate from? Is the contraband tobacco actually made in Canada, or does it come from another country, or is made in the United States?

Ms. Philpott: It may be that the Minister for Public Safety who addresses Canada Border Services Agency could give you further information about how much contraband products are seized at the border.

Are you prepared to answer that, Ms. McDonald? How much of it is coming across the border?

Senator Neufeld: You don't know how much is coming into Canada is what you're telling me, but we're talking about it.

Ms. McDonald: Within the Federal Tobacco Control Strategy, Health Canada is responsible for the aspects relating to the health and safety of Canadians. Public Safety is another partner, along with RCMP, CRA, and Canada Border Services as part of the Federal Tobacco Control Strategy. They are responsible for the issue of contraband tobacco and controlling that. They have information on contraband generally.

In Canada, we have maybe a bit of a different problem than some other countries where counterfeit is a big issue. Counterfeit tobacco is when you have a product that looks like a legitimate product but doesn't contain a legitimate product. That is a bigger issue in Europe and other countries. Counterfeit is less of an issue in Canada. Our biggest problem is around contraband. Much of that contraband is manufactured in Canada.

Senator Neufeld: Thank you.

Senator Petitclerc: I have a question on when vaping becomes legal. We talk a lot about the harm reduction with vaping. It is a product. There will be a market for it. There will be businesses making profits out of vaping.

We have heard a bit about the worries some may have. The vaping associations have reassured us that their market will be smokers, but we can't be naive, either. I want to make sure that Bill S-5 has everything it needs to contain vaping products to smokers wanting to stop smoking.

I see your expression, but how confident do you feel that Bill S-5 has everything it needs to make sure that we don't expand a new market with a new product?

Ms. Philpott: I think that is a fantastic question. I am not sure I have the entire answer to that. The reality is that people who open businesses are usually in the business of selling their products. If they see potential markets they are usually inclined to try to enjoy those markets.

This simply speaks to the need for it to be balanced. We have tried to be very cognizant of the balance and to recognize it is a desirable harm reduction tool, knowing that we need to continue to make the message clear that this product is associated with harms. We must never forget to say that vaping products have associated harms, but these are less harmful products and therefore have a role to play in harm reduction for people who are current smokers.

Does it actually meet the ability to be able to close off that other market? We would be naive to assume the people who produce these products will not try to encourage a broad range of people to acquire the products. However, it will be very important to put regulations around it to make very clear the age at which people should be able to purchase the products and there should be very clear restrictions around promotion of the product.

I have had the opportunity in the months leading up to this to meet with young people. We have had roundtables with young people, for example, who have talked to me about the appeal of vaping products and the misconceptions and myths in high schools even here in Ottawa.

I sat down at a roundtable. You were there with me. We talked to some of those young people about how appealing e-cigarettes were, the lore that goes on in high schools about how safe these products are, how fun and cool they are, and the fact that they will potentially entice young people to use a product that they could become addicted to.

As one of your colleagues said earlier, we still are lacking adequate information about the possibility that it might lead someone to go on to use a tobacco product, which we know has absolutely clear harms associated with it. There is a lot more we need to learn in that regard.

We certainly hope this has as much strength and rigour as it could possibly have at this point. I would welcome any recommendations honourable senators have as to how we could strengthen that aspect of the bill to ensure that it has taken into consideration our commitment to protect our young people from taking up a habit that would lead to adverse health consequences.

Senator Seidman: I would like to ask you specifically about the advertising restrictions as it concerns vaping. We heard a lot about this from our witnesses. I know that the bill does not include the same tight restrictions for vaping as it does for tobacco. I would like to give you the opportunity to tell us why that is the case.

Ms. Philpott: I can speak to one particular feature of that, perhaps, and maybe the officials might want to elaborate further.

One of the things that you'll see a distinction on is the matter of plain packaging for tobacco products versus vaping products. We're very pleased to introduce through this bill the authorities that would allow us to regulate plain packaging.

We know this works. We know, for instance, putting restrictions around the kind of font that can be used, the colours of packages, and taking away the ability to put sparkly colours and logos on tobacco products, will decrease the appeal of those products, particularly for young people.

We also believe that it fully meets the requirements of our Charter of Rights and Freedoms. This is something that has been addressed in other countries that obviously have their own constitutions to deal with. We are able to put those restrictions on plain packaging around tobacco products because the Charter allows us to do that when the evidence is absolutely abundant that the public health risks associated with these products outweigh the rights of the industry to be able to promote themselves.

In the case of vaping products, we are not dealing with the same type of balance in terms of firm evidence of harm and that being outweighed by the ability of an industry to be able to promote itself.

Not being a lawyer, how was that for my Charter explanation? Hopefully that will help you to understand the differences in terms of much tighter controls on packaging, for example.

Senator Seidman: You addressed one particular aspect, which was the packaging, but there are other aspects that aren't the same as tobacco. For example, advertising to children or to youth. "Children" is not quite right, but to youth.

Information and fact advertising is permitted. Lifestyle advertising is permitted for adults. We did have particular testimony here about the fact that lifestyle advertising is risky because it might appeal to youth. Youth will still see it and it still may increase their use of e-cigarettes.

What we had proposed to us was that we should have only information and fact advertising and do away with all lifestyle advertising. I'd like your response to that.

Ms. Philpott: To do away with all lifestyle advertising of e-cigarettes.

Senator Seidman: Exactly.

Ms. Philpott: That wouldn't be Charter compliant either. Based on the evidence we have to date, it all comes down to recognizing that to date the expectation would be that it would not meet the requirements of the Charter.

Senator Seidman: You are saying that is exactly the same as packaging issues. I appreciate that.

The Chair: Minister, I know you've given us a lot of time. I know certain people in the back are getting a little agitated. Would you be able to answer one more question from Senator Eggleton before you leave?

Ms. Philpott: Senator Eggleton, I tell you, I hope he's nice to me.

Senator Eggleton: I always am.

Ms. Philpott: He always has been up till now.

Senator Eggleton: Absolutely. The Canadian Cancer Society brought to us 22 amendment suggestions for Bill S-5. I'm not going to ask you to comment on all of them, and I'm not going to go through all of them.

I just want to highlight two or three points and get any comments you have on their representations particularly on those points. After you leave, those who remain can maybe talk in more detail about it.

For example, they said ban all tobacco manufacturing incentive sales promotions, starting with tobacco retailers. For example, bonuses for achieving sales volume targets, sports and entertainment tickets, incentives for participating sales promotion programs, chances to win vacations and all other incentive programs.

This is going to the retailers. They point out this has now been banned, as per the Quebec legislation, since November 2016.

They also go into a number of others. I have 22 here altogether. They say they think there needs to be some provisions and regulatory authority with respect to water-pipe products. There are a lot of variations on all of this that are of concern. They talk about the proposed definition of tobacco product that would exclude raw leaf tobacco intended for consumer sales. They indicate some concerns there and a raft of others.

Can I get your general comments about the Canadian Cancer Society's suggestions, particularly the ones I've highlighted?

Ms. Philpott: First of all, I'm pleased that you had an opportunity to meet with them and are taking all their recommendations into consideration. It's Cancer Awareness Month, so it's very apropos that you would meet with them and take their requests seriously.

On the matter you discussed in terms of the promotion of events, I think you're speaking in terms of vaping products in this case.

Senator Eggleton: They put it under tobacco related.

Ms. Philpott: We already have that authority under tobacco, don't we?

Ms. McDonald: I think what we're talking about here is this idea that tobacco manufacturers can incentivize retailers to sell their products. If I'm a retailer, I can say, "Please, senator, sell 10 packs of my cigarettes and then I'll give you a trip to Cuba so you can go on vacation." Indeed, Quebec has taken action on this.

From the federal perspective there are two pieces: One is just like other things the minister mentioned. There is an issue around Charter and having sufficient evidence that it is causing harm and that it's having an impact in terms of making people smoke.

The second piece that I'd like to mention is some of these broader aspects about industry accountability are key components of what we're consulting on now in the overall renewal of the federal strategy and how we can do a better job of making and keeping industry accountable for their actions.

Senator Eggleton: Do you have any comment on the water-pipe products? Do you see any need to put controls there? They're suggesting you do that.

Ms. Philpott: That's one of the things that is also being discussed as part of the tobacco control strategy, if I'm not mistaken. It doesn't necessarily fit into this particular legislation, but it is something that we are taking into legislation.

The Chair: Minister, thank you so much for taking the time and the amount of time you've given us today and the clarity of your answers. You and your colleagues certainly have clarified a number of very important issues that we wanted to hear directly from you on. We appreciate that your officials will stay behind.

On behalf of the committee, I express our appreciation to you personally.

I welcome to the table Denis Choinière, Director, Regulatory Office, and Adam Doane, Senior Science Adviser.

Senator Seidman: There are many provinces in Canada like Quebec, for example, that already have some regulations which cover the whole broad spectrum from minimalistic to more major.

Can you tell me if you see any provisions in Bill S-5 relating to vaping products that might conflict with provincial laws? If that's the case, how would these conflicts be resolved?

Denis Choinière, Director, Regulatory Office, Health Canada: We've examined the legislation from the provinces in developing the bill. Typically what you see are provisions that deal with age for selling vaping products to youth. Some of them have promotional restrictions at retail as well.

From what we've noted we don't see any conflict so far, but we do see provinces that go further. For example, the age in some provinces will be 19, while in the bill it's proposed to be 18. This is not a conflict because provinces are allowed in following the same objectives to go further if they wish to.

Senator Seidman: You mentioned retail. Is the retail aspect going to be determined in the provinces by the provinces, or is there something in the legislation or in the regulations? I'm not sure I really understand that aspect.

Mr. Choinière: Let's take the example of tobacco. Right now I believe all provinces have restricted the display of tobacco products at retail. Federally, we do have the authority but we're not exercising it for tobacco products at retail because provinces are doing it.

In the similar vein, not all but many provinces have also restricted the display of vaping products at retail or have put conditions around the display at retail for vaping products. Again, we have in the bill authority to do so, but the likelihood we'll do so is very low given that the provinces are already regulatory active in this area.

Senator Seidman: Thank you. That's helpful.

Senator Eggleton: I'll go back to the Canadian Cancer Society submission. As I said, they're asking us tomorrow to pass 22 amendments to Bill S-5. I've highlighted three of the aspects: the incentive or sales promotions to retailers, the water pipes and the raw leaf tobacco concerns.

They seem to have distributed it fairly widely and I think you've been covering what we're doing. Do you have any general comments or any specific comments?

Let me throw one other in here, because we've had representations or written submissions from people that produce cigars and, believe it or not, chewing tobacco. I thought ball players were the only people who did that. Are they being treated any differently, or is there any change in how they're being treated? That's my two-part question.

Ms. McDonald: Perhaps I can start. We have indeed had the opportunity to review the amendments put forth by the Canadian Cancer Society. We've been looking at them carefully, trying to understand where we have current authorities, where it's in line with what the current legislation intends to do, where it's appropriate to do so, and where some of the amendments really are more appropriate for the renewal of the Federal Tobacco Control Strategy. We're already consulting on a number of key elements including industry accountability, manufacturing, et cetera.

Perhaps with regard to the question you raised around raw leaf tobacco and tobacco leaves in particular, that's one we've taken a careful look at and we're continuing to study.

The issue there is that we had previously in the definition used the words "tobacco leaves" and they were dropped out in the new definition as we've identified it. We're looking to see what implications there would be from that.

Senator Eggleton: How would you correct that if you found there was an implication? Can you do that in the regulation? Well, no, this would be the wording in the act.

Ms. McDonald: That's right. There would need to be an amendment to correct that.

Senator Eggleton: Do you have any other comment on any of those provisions? What about the cigars and the chewing tobacco folks? What do you have to say about them? Are they treated any differently?

Ms. McDonald: The question is: Will cigars and chewing tobacco be treated differently under plain packaging?

Senator Eggleton: Yes.

Ms. McDonald: Under plain packaging the minister launched a public consultation and in that public consultation indicated the intention would be to cover all tobacco products covered under the Tobacco Act. That consultation is now closed and we're in the regulatory development phase, so you'll need to stay tuned for the regulations.

Senator Seidman: We have received a lot of emails over this piece of legislation. It's engendered a lot of conversation among Canadians. I'd like to ask you about one of the things that we have heard, especially those of you in the department who are very engaged in drafting this piece of legislation.

We heard that there should have been a separate piece of legislation for vaping. Why was it included as an amendment to the Tobacco Act?

My question to you is this: Had you thought about creating a totally separate piece of legislation for vaping? Why did you choose instead to amend the Tobacco Act and add vaping as a component, as a separate section to the Tobacco Act?

Ms. McDonald: In reviewing and updating the legislation all options were considered, including a separate stand-alone piece of legislation, including it in the Tobacco Act, and many other options, actually. The reality is that for the very reasons you raised there is a link between vaping products and tobacco products. We do not want vaping products to be a gateway to tobacco products. We want to make sure we're protecting our youth. Those purposes are closely aligned. We want to protect our youth from the dangers.

However, we recognize that all aspects of the current Tobacco Act do not apply to vaping products. It is a different kind of product, which is why the decision was made to treat it as a separate class of products under the same act. It is subject to separate provisions.

I understand from the perspective of many stakeholders that seeing them together makes it feel like they are being treated like tobacco, but the reality is that they are a separate class of product and the provisions are clearly delineated.

In some instances it makes sense they would have the same kinds of provisions. A clear one is this idea of sales and age of sales. Those should be aligned and have been aligned in the act.

Does that answer the question?

Senator Seidman: Yes, it does. I appreciate that.

Senator McPhedran: First, I want to make a request. I know that we have some documentation from Australia, but I wonder if we actually have what was recently sent to your deputy minister. If I may request that for us to review and ensure that we have the most comprehensive sources, it would be great.

Second, I note the decision that as of May 20 in the U.K. standardized plain packaging will become the law. There will be a phasing-out of anything that has branding on the packaging. This is a somewhat anticipatory question. I know you'll do your best with it. There are limits to how far you can answer because it's really about the future.

Mindful of big tobacco in Canada and the Supreme Court of Canada decisions around freedom of expression and the support for being able to market and advertise, has there been any contemplation around vaping? If there's any kind of a regulation around vaping if this goes ahead, are there equivalent concerns on the part of the vaping industry that would relate to some of the big tobacco cases?

Ms. McDonald: Perhaps I could start and then I'll turn it over to our counsel, if we need to refine. We'd be happy to provide the letter from Australia to our deputy minister. I will note that it was provided in English from the country of origin, so we will be providing it in English only. We're happy to table that.

With regard to plain packaging, the question is: You're going to plain-package tobacco products. Will you also be plain packaging vaping products as you move forward? What is the thought process there?

Our minister explained that we have the ability to move forward on plain packaging, because there's a lot of evidence that indicates that tobacco products are deadly and that plain packaging works. We're able to move forward with plain packaging regulations within that context. Indeed, we've done a thorough analysis to make sure we're meeting all those requirements.

The reality is that vaping products simply do not cause the same level of harm as tobacco products do. They are harmful but they are less harmful. The legislation has been drafted in a way where we would have regulatory authority to take action around packaging for vaping products, but at this moment there's no intention to plain-package vaping products, given they have a very different profile than tobacco products do. That comes back to questions around harm and the Charter. I don't know if you wanted to add anything to that.

Mr. Choinière: I would rather ask our legal counsel to provide the answer.

Anne-Marie LeBel, Counsel, Health Canada Legal Services, Health Canada: As you know, the Charter protects individual rights and freedoms, but it also acknowledges the fact that it can be limited by laws when there's an important objective. It has to be tailored; the limits have to be tailored when it's enacted.

This is an effort of tailoring that Health Canada has been doing in looking at the types of risks, the health and benefits of vaping products, the harms, and choosing the appropriate limits to apply to vaping products.

If future evidence comes forward and more limits are required, there will be some additional tailoring to do.

Senator McPhedran: May I ask a supplementary question on that? I want to make sure I understand the answer. Are you telling us that at this point to the extent possible you feel the regulatory framework you're proposing to put in place vis-à-vis vaping will be sufficient to be responsive to new evidence of greater harm?

Mr. Choinière: I can address this one. Because it's an emerging market, we included at clause 38 of the bill a new section 30.45. This provision addresses future packaging elements that could be put in place through regulations. There would be a prohibition to promote through packaging for vaping products that would be contrary to what the regulations would say.

As my colleague Ms. McDonald said earlier, there are no plans to go there. It's an emerging market so we're giving ourselves the tools to react to the future.

The Chair: I will give the sponsor of the bill a chance to ask the last question if she wishes to.


Senator Petitclerc: Thank you. I would have one last question to ask.


I have a personal concern that is not directly on the scope of the bill. We have heard a bit about it. Senator Mégie had a question on that. I want to be reassured that it is being addressed.

We're going to have vape shops. People will own the vape shops, sell products, and provide information for smokers wanting to stop smoking, without medical training. I want to make sure we keep this in mind when the bill will be put in place.

Has it been thought of already? Is it going to be part of the consultation?

Ms. McDonald: You have heard a number of witnesses talk about vape shops and how those will move forward. The reality is that we've put in place legislation under criminal law. Under criminal law generally you set out the various prohibitions. This is more of an educational piece in how that might be handled. Perhaps it is not appropriate for the piece of legislation, but we know that provinces and some territories are looking at the issue of how this can be done.

I would like to clarify that vape shop owners should not be providing medical advice. They're not allowed to provide that kind of medical advice. What they can do is provide information about the product. We would expect that vape shop owners and clerks would be referring clients to a medical professional to get advice on quitting smoking, et cetera.

They have the authority to talk about the product itself. I think the vaping association spoke about the fact that they're looking at putting in place potential measures that would help train vape shop clerks so they could provide appropriate information and understand what those parameters are.

Furthermore, as Hilary indicated, we within Health Canada have the ability and some funding to make very clear to Canadians what the profiles of vaping products are, and we intend to do so.

Again, it's potentially not appropriate for this piece of legislation, but we expect that provinces and territories are looking at the issue. We know that the industry itself is looking at that issue as a very important component.

The Chair: To my colleagues, tomorrow we will be doing clause by clause. I will remind you that if you have any observations to suggest, you must bring them in both official languages and in sufficient volume for all members of the committee.

Senator Eggleton: You are saying that for amendments.

The Chair: If you have an amendment, you must have it vetted by the law clerk and provided in both official languages, with sufficient copies for all members of the committee. That was one addition with regard to amendments.

With that, colleagues, we've reached the end of our formal witness hearings. I thank the officials for being here and helping to clarify the issues.

(The committee adjourned.)

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