Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 21 - Evidence - April 12, 2017
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 4:20 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
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.
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, 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Senator Stewart Olsen: This is more a point of clarification for
me. When will we see the regulations, and when does the legislation come
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
(The committee adjourned.)