Health Canada Webinar with Imperial Tobacco Canada Ltd. – March 28, 2024

Subject(s):

The proposed Order Amending Schedules 2 and 3 to the Tobacco and Vaping Products Act (Flavours)

Date:

March 28, 2024

Participants:

Tobacco Control Directorate (TCD) speakers:

• Sonia Johnson (Chair), Director General, Tobacco Control Directorate (TCD), Controlled Substances and Cannabis Branch (CSCB)
• Manager, Vaping Regulations, Tobacco Products Regulatory Office (TPRO), TCD, CSCB
• Policy Analyst, Vaping Regulations, TPRO, TCD, CSCB

Imperial Tobacco Canada Ltd. (ITCAN):

• Frank Silva, President and Chief Executive Officer
• Eric Gagnon, Vice-President, Corporate and Regulatory Affairs
• Veronica Atsaidis, Legal Regulatory Consultant

Introduction:

TCD invited key stakeholders to discuss the proposed Order Amending Schedules 2 and 3 to the Tobacco and Vaping Products Act (Flavours) and confirm that their comments and views had not changed since the prepublication consultation that closed in September 2021. Representatives from Imperial Tobacco Canada accepted this invitation in order to present their concerns related to the proposal.

The Chair opened the meeting with round table introductions.

TCD reminded participants that this meeting is subject to disclosure as per HC's Openness and Transparency policies . In the interest of transparency, the Department stated that it would be making a record of the meeting publicly available. The handling of information and privacy notice was mentioned and acknowledged.

HC also referred to Article 5.3 of the World Health Organization Framework Convention on Tobacco Control (WHO FCTC), its international obligation to protect tobacco control policies from the vested interests of the tobacco industry. It was acknowledged by ITCAN representatives.

Subjects:

The Tobacco Control Directorate provided an overview of the regulatory proposal published in the Canada Gazette, Part I, on June 19, 2021, including theStandards for Vaping Products' Sensory Attributes Regulationsand the Order Amending Schedules 2 and 3 to the Tobacco and Vaping Products Act (Flavours).

The proposal would limit the available vaping flavour options using a three pronged approach, including: further restrictions on promotion; prohibition on most flavouring ingredients, and all sugars and sweeteners in vaping products; and prescribing sensory attributes standards.

More specifically, the proposal includes the following measures:

• Further restricting the promotion of flavours, the proposal would amend Schedule 3 to the Tobacco and Vaping Products Act(TVPA) to expand the list of flavours whose promotion is prohibited;
• The use of any descriptors or illustrations on vaping product packaging would also have to comply with the current restrictions on promotion under the TVPA;
• The proposal would amend Schedule 2 of the TVPA, resulting in a ban on most flavouring ingredients and on all sugars and sweeteners from use in vaping products;
• The prohibition on the use of sugars and sweeteners would align with existing bans on their use in tobacco products and cannabis extracts; and
• The proposal would set out standards mandating that a vaping product or its emissions have sensory attributes that would only smell or taste like tobacco or mint/menthol.

TCD also provided a summary of ITCAN's concerns submitted during the consultation period and sought to validate whether they remain the same.

ITCAN representatives welcomed a federal framework to address the variety of provincial regulations made with regards to vaping flavours in the last few years, as the vaping market has evolved since the proposal was published and the initial consultation took place. ITCAN representatives mentioned that, since then, the number of flavours in the vaping market has multiplied (now reaching 900 flavours), which they believe can be streamlined; the disposable vaping market is growing and changing rapidly; and provincial/territorial regulations have created compliance and enforcement issues. Generally, representatives felt that harm reduction messaging could be more clear, and comparative health claims should be permitted, however, manufacturers should have to substantiate them.

ITCAN highlighted some positive developments since the TVPA came into force in 2018, including that approximately 1.5 million people who smoke have switched to vaping, and in 2020, Canada saw its most significant decline in cigarette sales. Additionally, results from the 2022 Canadian Student Tobacco, Alcohol and Drugs Survey demonstrate that youth vaping rates have stabilized.

Representatives also offered specific criticisms of the proposal which were highlighted by four major themes: enforcement; flavouring ingredients in vaping products; flavours for adults; and youth access.

Enforcement

With regards to enforcement, ITCAN expressed the following concerns:

• Lack of enforcement of various provincial regulations, which may be hindering enforcement efforts and contributing to the presence of illicit vaping products in Canada, and interprovincial shipments have made these regulations more difficult to enforce;
• Imported products which are not compliant with Health Canada or provincial/territorial regulations; and
• Flavour additives (e.g. concentrated shots) on the illicit market, which pose health risks and are not formulated or tested for vaping products.

ITCAN supports a regulatory framework that addresses these concerns and recommended the following measures:

• A comprehensive enforcement strategy be developed and implemented prior to the introduction of any new federal regulations in order to mitigate risks associated with inadequate enforcement.
• ITCAN wishes to see increased enforcement, including clarifying the responsibility for enforcement, allocating resources effectively, establishing reporting mechanisms for illicit sales, and publishing outcomes to enhance transparency and accountability.
• ITCAN would also like to see stricter penalties, including fines and licence suspensions, for retailers and manufacturers found selling non-compliant products.
• Additionally, ITCAN expressed they would like to see more training for Canadian Border Services Agency personnel to prevent the entry of illicit vaping products into Canada, focusing on the entire supply chain, and not only retailers.

Flavouring ingredients in vaping products

With regards to flavouring ingredients, ITCAN underscored how the palatability of vaping products encourages people who smoke to switch to vaping. Additionally, ITCAN advocated for a comprehensive list of prohibited ingredients in vaping products, and questioned the effectiveness of the proposed sensory attributes panel, stating that the proposed ingredient list is flawed and over complicated. ITCAN believes that the proposal does not reflect complexity of vaping products.

Flavours for adults

Regarding flavours for adults, ITCAN stated they believe there is no link between flavour restrictions and youth vaping. They also stressed importance of flavours for adult consumers, particularly for those who want to quit smoking. Further, ITCAN stated that compliance in vape shops is a significant challenge. They believe fruit flavours should be permitted, in addition to tobacco, mint, and menthol.

Youth access

With regards to youth access, ITCAN representatives advocated for a consultation and review of online sales, stressing the need for triple age verification and recommended prohibiting online vendors from fulfilling large orders of vaping products for personal use. Additionally, ITCAN urged Health Canada to consider stronger penalties for retailers caught selling products to minors.

In addition to their concerns related to the proposed Order and regulations, ITCAN raised the following issues:

• Presented device format recommendations, including supporting a 2mL cap in pods or disposables to curb puff numbers, and age-locked devices;
• Recommended capping vaping liquids at 10mL for both open and closed systems to ensure a level playing field and mitigate tampering risks associated with open systems;
• Critiqued the current tax structure for favouring large volume purchases over smaller ones, prompting market shifts towards larger formats;
• Warned that tax advantages for larger devices could attract cost-conscious youth buyers; and
• Concerned of the unintended consequences the proposal would have if implemented, mainly that it would cause growth in the illicit market.

The Chair thanked participants for their comments.

Conclusion:

The meeting was then concluded.

Documents:

• Presentation prepared by TCD