Protection of young persons – Some Key Prohibitions and related Penalties under the Tobacco and Vaping Products Act

Please find below additional information regarding the prohibitions identified in the letter.

1. Prohibition on Furnishing Vaping Products to Young Persons

Subsection 8(1) of the TVPA states:

No person shall furnish a tobacco product or vaping product to a young person in a public place or in a place to which the public has access.

This prohibition establishes uniform protection for youth across Canada. The federal regime can be supplemented by provincial and territorial legislation. For example, in provinces where vaping products may only be sold to people over the age of 19, subsection 8(1) will not prevent the provincial measure from applying.

2. Prohibition of Advertising of Vaping Products Appealing to Young Persons

Section 30.1 of the TVPA states:

No person shall promote a vaping product, a vaping product-related brand element or a thing that displays a vaping product-related brand element by means of advertising if there are reasonable grounds to believe that the advertising could be appealing to young persons.

The purpose of this section of the TVPA is to protect young persons from inducements to use vaping products by prohibiting the promotion of vaping products, vaping product‐related brand elements, and things that display these brand elements by means of advertising that is appealing to them. The word “advertising” captures means of promotion that are more likely to reach youth, such as advertisements in magazines or on the radio, television, and Internet. Advertising can also appear on posters and displays at points of sale.

The advertising of branded merchandise is also banned to ensure that it does not serve as a proxy for the promotion of vaping products to youth.

3. Prohibition of Lifestyle Advertising of Vaping Products

Section 30.2 of the TVPA states:

No person shall promote a vaping product, a vaping product-related brand element or a thing that displays a vaping product-related brand element by means of lifestyle advertising.

Please note that “lifestyle advertising” is defined under Section 2 of the TVPA as:

means advertising that associates a product with, or evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.

The purpose of this section of the TVPA is to protect young persons and non‐users of tobacco products from inducements to use vaping products by prohibiting promotion by means of lifestyle advertising. Lifestyle advertising creates positive associations with a product and is known to induce consumers to purchase and use a product without providing any useful information about it.

The promotion of branded merchandise is also banned by this prohibition to ensure that it does not serve as a proxy for the promotion of vaping products to youth.

4. Prohibition of Promoting Vaping Products through Testimonials or Endorsements

Subsection 30.21(1) of the TVPA states:

(1) No person shall promote a vaping product through a testimonial or an endorsement, however, displayed or communicated, including by means of the packaging.

(2) For the purposes of subsection (1), the depiction of a person, character or animal, whether real or fictional, is considered to be a testimonial for, or an endorsement of, the product.

The purpose of this prohibition is to protect young persons and non‐users of tobacco products from inducements to use vaping products by banning promotions through testimonials and endorsements. The use of testimonials and endorsements as a marketing technique is known to contribute to creating and maintaining the perception that the use of the endorsed product is socially desirable.

5. Prohibition of Promoting Vaping Product Flavours Appealing to Young Persons

Subsection 30.48(1) of the TVPA states:

No person shall promote a vaping product set out in column 2 of Schedule 3, including by means of the packaging, through an indication or illustration, including a brand element that could cause a person to believe that the product has a flavour set out in column 1.

The purpose of this prohibition is to protect young persons and non‐users of tobacco products from inducements to use vaping products. The availability of attractive flavours in vaping products has raised concerns that the flavours make them more appealing to youth, especially since flavoured tobacco products are popular among youth.

The TVPA limits vaping product marketing aimed at young persons with a ban on the display of indications or illustrations representing attractive flavours, namely the classes of flavours listed in Schedule 3 of the TVPA (e.g. confectionery flavours).

Penalties

Every person who contravenes subsection 8(1) or ..., is guilty of an offence and liable on summary conviction:
(a) For a first offence, to a fine not exceeding $3,000.00; and
(b) For a subsequent offence, to a fine not exceeding $50,000.00

Every person who contravenes … section 30.1 or 30.2, … subsection 30.21(1) … or subsection 30.48(1) …, is guilty of an offence and liable on summary conviction to a fine not exceeding $500,000.00 or to imprisonment for a term not exceeding two years, or to both.

Disclaimer

The information contained herein does not constitute part of the Tobacco and Vaping Products Act or its associated Regulations. In the event of any inconsistency or conflict between that Act or Regulations and this document, the Act or the Regulations take precedence. This document is an administrative document that is intended to facilitate compliance with the Act and Regulations.

This document is not intended to provide legal advice regarding the interpretation or application of the Act or Regulations. If a regulated party has questions about legal obligations or responsibilities under the Act or Regulations, it is recommended that they consult with their legal counsel.