Photo: The Canadian Press
People keep warm in their winter coats as fumes outside the west block of Parliament Hill as snow falls in Ottawa, Wednesday, Dec. 15, 2021. Advocates on both sides of the fume debate say the government needs to do more to to impose penalties for the sale of vaping to children after a review concluded that no changes to the legislation were warranted. THE CANADIAN PRESS/Justin Tang
Advocates on both sides of the vaping debate say the government needs to do more to impose penalties for selling vapes to children after a review concluded no changes to the law were warranted.
The Tobacco and Cigarettes Act aims to walk the fine line between giving people who smoke a safer alternative to combustible tobacco products and protecting young people and non-smokers from taking up smoking.
The law, which came into force in 2018, legalized the sale of vapes – or electronic cigarettes – with or without nicotine. They are now found in specialty vape shops, convenience stores, gas stations, and online retailers nationwide.
Health Canada recently decided that changes to the law were not necessary after considering feedback from provinces and territories, non-governmental organizations, members of the vaping industry and the public.
His reviews say the government could use regulations to adjust industry rules instead, such as a proposed regulation to place limits on sales of flavored products.
But enforcement tools for rule breakers may be limited beyond issuing warnings, the review said. He recommended that Ottawa explore other options.
“Given the evidence of repeat violations and the limitations of warning letters, the development of additional tools that could respond to repeated non-compliance with a progressive enforcement approach could be explored,” said the Health Canada report, which was tabled in parliament in December.
Online sales to minors have proven particularly difficult to control because regulations around age verification “may not be sufficiently responsive, the report said.
A 2021 Health Canada review of vaping activities and smoking came to a similar conclusion after finding that specialty vaping shops were particularly prone to breaking the rules.
The law already includes fines and penalties for violations, but those have not been used, said Cynthia Callard, executive director of Doctors for Smoke-Free Canada.
“They gave themselves the power when they passed the law in 2018,” Callard said in an interview. “Now they’re saying, ‘Well, we’ve got to look at something else,’ without really explaining why they’re reluctant to use the powers they have.”
The Health Canada report shows that in 2019, the department inspected more than 3,000 specialty vape, gas and convenience stores and seized more than 80,000 units of non-compliant vaping products.
During the pandemic, Health Canada made inspections virtual and focused on promoting vaping and nicotine products. It issued warning letters to 53 of the 304 retailers it inspected for illegal social media posts.
In a statement Friday night, a Health Canada spokesperson said the department “has a compliance and enforcement program in place,” citing the inspections. “All retailers of tobacco products and vaping products are responsible for knowing and complying” under the law, the statement said.
“Health Canada enforces legal and regulatory requirements and, where necessary, will take compliance and enforcement actions, including warning letters, sales suspensions, product recalls and criminal investigations.”
Still, the review made no mention of criminal charges under the act, which comes with hefty fines and even jail time for violators.
Maria Papaioannoy, spokeswoman for Rights4Vapers, agreed that it would be helpful if Health Canada focused on enforcement, especially when it comes to the sale of vapes to minors.
“We believe that responsible vape shop owners do not sell to minors. We think responsible shop owners don’t sell to minors,” said Papaioanoi, whose group advocates for people who have used vapes to quit smoking cigarettes. “It’s the black market.”
The government said there is not much research on the long-term health effects of inhaling e-cigarettes and the potential effects of second-hand exposure, but Health Canada is promoting vaping as a safer alternative to smoking combustible tobacco products.
Papaioannoy said she was encouraged to see the department admit in the review that it has not done a good job encouraging people who smoke to switch to vaping.
Data from the government’s 2021 Tobacco and Nicotine Survey shows that about five percent of Canadians over the age of 20 have used vaping products, and the majority are people who smoke or have smoked.
Among those people, about half said they drink in an attempt to stop or reduce the amount they smoke.
Vaping among young people has grown since the legalization of e-cigarettes, but appears to have stabilized in 2021, with about 13 percent of teens between the ages of 15 and 19 having smoked at least once in the past 30 days, according to the survey.
The December review is the first to assess the impact of the federal vaping legislation, although it does not address the changes the bill also made to the regulation of tobacco products. Health Canada aims to review other aspects of the law in two years.
The report had to be submitted by last May according to the deadlines set in the legislation, Callard said.
Doctors for Smoke-Free Canada sought a Federal Court injunction in November to compel the government to conduct the review, but the government released it before the matter could proceed. Ottawa has not responded to the traffic notice.
Callard said he did not want to spend resources pushing the matter to court, but interpreted the lax approach to the schedule as a reflection of the government’s enforcement of the rules as a whole.
“They don’t take the law seriously themselves,” she said.
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