Today, the Canadian Constitution Foundation (CCF) released its report “Vaping and the Law,” the first ever comprehensive study of e-cigarette regulations in Canada.
E-cigarettes (battery-operated devices used to inhale a vapour that can contain nicotine and other chemicals) first appeared on the market in the early 2000s, but did not become widely available until 2007. The act of inhaling from an e-cigarette is colloquially referred to as “vaping”. They have been demonstrated to be an effective, consumer-driven harm-reduction tool, which the free market has created and continually improved.
Provincial and local governments have introduced strict regulations on e-cigarettes and, at the end of last year, the federal government introduced Bill S-5, which would impose for the first time national regulations on e-cigarettes. These laws and proposed laws threaten the industry’s ability to grow and maximise the significant public health and financial benefits of encouraging cigarette smokers and would be smokers to switch to less-harmful e-cigarette technologies.
Further, because e-cigarettes are a proven harm-reduction tool and an aid to cigarette smokers trying to break their life-threatening habit, impeding Canadians’ access to e-cigarette technology may violate section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty, and security of the person.
The CCF report does not encourage e-cigarette use as a completely healthy or harmless act for non-smokers. Instead, it describes how government can take a Charter rights- and evidence-based approach to e-cigarette laws and regulations that respects the constitutional rights of Canadians to choose a less harmful alternative to combustible tobacco cigarettes.
Our general recommendation is that Canadian jurisdictions look to the United Kingdom for guidance in developing and implementing e-cigarette laws and regulations. The U.K. government has accepted that e-cigarettes are a much less harmful alternative to cigarette smoking, especially for those unable or unwilling to quit their nicotine habit altogether. Since 2000, the number of cigarette-smoking adults in England has fallen by one-third and smoking by youth has fallen by two-thirds.
Following the United Kingdom’s approach, the CCF recommends that a Charter rights- and evidence-based approach to regulation of e-cigarettes would incorporate the following principles:
E-cigarettes should not be regulated like either medicine or tobacco. Instead, an evidence-based regulatory model specific to e-cigarettes should be created that addresses legitimate safety concerns but maximizes smokers’ knowledge of and access to alternative harm-reduction products.
Governments should not restrict e-juice flavours on the market.
Governments should allow youth to purchase e-cigarettes with the explicit permission of a parent, guardian or doctor.
Vape shop owners should be able to work with consumers at the point-of-sale to explain, test and sell e-cigarettes.
Vaping should not be prohibited by law, as cigarettes are, in public places and workplaces. Private property owners, such as businesses, should be free to set their own rules.
Governments should not restrict communication about the harm-reduction advantages of e-cigarettes for current smokers.
Grading the Provinces and the Federal Government
We have evaluated existing and proposed provincial and federal laws to see how closely they align with these recommendations. Disappointingly, only one province (British Columbia) merited a grade of B. Most rated no higher than a D. Where provinces lacked a province-wide law, we did not award a grade but described representative municipal regulations.
Most significantly, and most discouragingly, the federal government’s proposed Bill S-5 scored the worst of the examined laws. This is important because, as with the current Tobacco Act, if Bill S-5 becomes law, it will supersede existing provincial and municipal e-cigarette regulations. While the CCF recognizes the potential benefits of national safety standards for e-cigarettes, those standards and accompanying regulations must not treat e-cigarettes in substantially the same way as the much more harmful traditional cigarettes. Applying the advertising, communications, sales, and other restrictions currently applicable to combustible tobacco cigarettes to e-cigarettes is not only likely unconstitutional, it would deny Canadian smokers and would-be smokers the enormous public health benefits of e-cigarettes.
The public health and financial benefits of a regulatory regime that treats e-cigarettes as the harm-reduction and smoking cessation tools that they are would be significant. It would make more sense than the abstinence-based approach that the government understandably takes to traditional cigarettes. Unfortunately, our analysis of Bill S-5 shows that the federal government, while paying lip-service in its communications to the harm-reduction potential of e-cigarettes, is planning to make it much harder for smokers to learn about the benefits of switching to e-cigarette technology or to access and adopt e-cigarette technology.
“E-cigarettes present Canada with an enormous health-care opportunity that could save lives and billions of dollars in taxpayer money. We encourage legislators to educate themselves on the actual evidence about the relative benefits of e-cigarettes over combustible cigarettes and the public-health approach to e-cigarettes adopted in the United Kingdom, and to bear in mind the constitutional issues implicated in regulating healthier alternatives to cigarettes.”
Derek From, J.D.
CCF Staff Lawyer
“Vaping is probably the most significant alternative to lethal cigarettes that we have seen in my third of a century of work to reduce smoking. The problem of cigarette-caused disease is simple: ‘It’s the smoke.’ Delivering the nicotine smokers need or want without the inhalation of the products of combustion would largely solve an epidemic that kills around 40,000 Canadians annually.”
David T. Sweanor, J.D.
Adjunct Professor, Faculty of Law, University of Ottawa
Centre for Health Law, Policy & Ethics, University of Ottawa
The full report can be downloaded here.
To request a hard-copy of the report or to support the work of the CCF, please go here.
Note: The CCF has not as of the time of this report’s release accepted any funding from either tobacco companies or from manufacturers, purveyors, or promoters of e-cigarettes.
The Canadian Constitution Foundation (“Freedom’s Defence Team”) is a registered charity, independent and non-partisan, whose mission is to defend the constitutional freedoms of Canadians through education, communication and litigation.