Notice to interested parties: Proposed order to amend the Schedule to the Tobacco Act (Menthol)

This notice offers interested parties the opportunity to provide comments on proposed amendments to the Schedule of prohibited additives found in the Tobacco Act. These amendments would prohibit the use of menthol in cigarettes, blunt wraps (tobacco leaves for rolling) and most cigars in order to make them less appealing to youth.

Due to the prevalence of menthol cigarette smoking among Canadian youth and the popularity of menthol in cigars, measures are being proposed to restrict the use of menthol in specific tobacco products to reduce their appeal among youth.  Preventing initiation of tobacco use by youth is recognized as one of the most effective means of reducing lifetime tobacco use.

Background

Tobacco use is the leading preventable cause of premature death and disease in Canada; it is responsible for more than 37 000 deaths each year. Direct health care costs are estimated at $4.4 billion annually, and the total burden to the economy, including indirect costs (e.g. lost wages, productivity), is estimated at $17 billion per year.

Among Canadians who have ever smoked a cigarette, 84% did so by the age of 18 years, and it is estimated that more than three quarters of this group will go on to become lifetime smokers. Youth who experiment with flavoured tobacco products are at risk for developing tobacco-use patterns that persist throughout their lifetime.

The Government of Canada addresses the public health problem of tobacco use through its Federal Tobacco Control Strategy (FTCS). Built on the pillars of prevention, protection, cessation and product regulation, the FTCS aims to reduce tobacco-related premature death and disease among Canadians. A fundamental component of the FTCS is the Tobacco Act, whose purpose includes the protection of young persons from inducements to use tobacco products. Preventing initiation of tobacco use by youth is one of the most effective means of reducing lifetime tobacco use.

In 2009, Parliament passed the Cracking Down on Tobacco Marketing Aimed at Youth Act (which amended the Tobacco Act) to limit the marketing of tobacco products to youth.  A key measure was to prohibit the use of flavouring additives (excluding menthol) and other additives that contribute to making cigarettes, little cigars (cigars weighing no more than 1.4 g or having a cigarette filter) and blunt wraps more appealing to youth.  This Act added a Schedule to the Tobacco Act which identifies which selected additives are prohibited in specified tobacco products. The Schedule was amended in June 2015 (through the Order Amending the Schedule to the Tobacco Act, SOR/2015-126, and hereafter referred to as "the 2015 amendment") to respond to the introduction of new flavoured cigars to the Canadian market, by extending the prohibition to additional types of cigars (cigars weighing more than 1.4 g but not more than 6 g, excluding the weight of any mouthpiece or tip, and cigars with tipping paper or a wrapper with a straight seam). Menthol was excluded from the 2015 amendment as well as additives imparting a flavour that is generally attributed to port, wine, rum or whisky in certain cigars. The Schedule can be viewed on the Justices Laws website.

Menthol cigarette use by youth smokers is of concern. The 2012-2013 Youth Smoking Survey found that menthol cigarette smoking is most prevalent among Canadian youth who are current tobacco smokers. Current youth smokers represent approximately 4% or more than 114,000 Canadian youth with 37% of those reported having used menthol cigarette in the last 30 days. While no specific data is available on the proportion of youth who use cigars and blunt wraps that contain menthol, the demonstrated interest of youth in menthol cigarettes, and in flavoured tobacco products in general, makes it is reasonable to infer that youth would find them appealing as well.

In 2014, the reported wholesale value of menthol cigarettes and cigars accounted for approximately $306 million, representing almost 5% of the total tobacco market with menthol cigarettes making up 98% of this amount. No data on blunt wraps sales are available, as they do not have to be reported to the Department of Health.

The Partial Guidelines for implementation of Articles 9 and 10 of the World Health Organization Framework Convention on Tobacco Control, a treaty ratified by Canada in 2004, provide guidance to the Parties to this Convention on, among other things, the regulation of the contents of tobacco products to reduce their attractiveness. These Guidelines state that "masking tobacco smoke harshness with flavours contributes to promoting and sustaining tobacco use" and recognize that menthol is one of many flavouring substances used for this purpose.

Proposed amendment

The Schedule to the Tobacco Act lists certain additives, including most flavouring additives, which are prohibited from use in the manufacture of cigarettes, blunt wraps and most cigars. Menthol is specifically excluded from the list of prohibited additives. The Department of Health is proposing to amend the Schedule to remove the exception for menthol thereby prohibiting its use, on the basis that menthol contributes to making these tobacco products more appealing to youth.

The amendment under consideration is as follows:

• The exception for menthol set out in the list of prohibited additives would be removed, resulting in its prohibited use in the manufacture and sale of cigarettes, blunt wraps and most cigars (little cigars, cigars with tipping paper, cigars with a wrapper that is not fitted in spiral form and cigars weighing more than 1.4 g but less than 6 g, excluding the weight of any mouthpiece or tip).  Removing the exception for menthol would also mean that the packaging and sale of these products would be prohibited where their packaging suggests, including through illustrations, that it contains menthol.

Submitting comments

The publication of this notice begins a 30-day comment period. There will be further opportunities to provide comments throughout the federal regulatory process. Comments received in response to this notice will be used to inform Health Canada's policy and to enhance the proposed amendments.

Stakeholders and interested parties are requested to provide their comments to the Manager, Regulations Division, Tobacco Products Regulatory Office, Tobacco Control Directorate, Healthy Environments and Consumer Safety Branch, Health Canada, in electronic format (Microsoft Word or Adobe Acrobat) to hc.pregs.sc@canada.ca or by mail at Address Locator 0301A, Tunney's Pasture, Ottawa, Ontario K1A 0K9.

Suzy McDonald
Director General
Tobacco Control Directorate
Healthy Environments and Consumer Safety Branch