Focus: Regulations on e-cigarettes under debate by profession

The federal government’s proposed approach to electronic cigarettes has come under fire from campaigners who say tighter regulations on the products will limit their effectiveness as a smoking-cessation tool.

Introduced in the Senate in late 2016, bill S-5 would rename the existing law the Tobacco and Vaping Products Act, and it includes restrictions on the advertising, marketing and flavouring of e-cigarette products, designed to keep them out of the hands of minors.

The battery-powered devices work by warming a liquid that contains nicotine, allowing it to be inhaled in vapour form, and have grown swiftly in popularity over the last few years.
According to the most recent data available from the Canadian Tobacco, Alcohol and Drugs Survey, about 13 per cent of Canadians over 15 had tried e-cigarettes, up from nine per cent in 2013. For youths between 15 and 19, the proportion rose to 26 per cent from 20 per cent over the same period.  

“We’re not saying this has to be a Wild West, unregulated area,” says Derek From, a staff lawyer with the Canadian Constitution Foundation.

“But my concern is when legislation strays into territory where it starts putting up barriers to smokers who are already addicted to nicotine and can’t stop smoking. As soon as there is a disincentive to switch to a less harmful alternative such as vaping, that’s when there’s a problem.

“We should be promoting vaping, not trying to protect people from it,” he adds.

From says that even the proposed name of the new law creates a false impression that the dangers of smoking and vaping are comparable, and he says traditional anti-smoking groups, such as cancer societies, should ease off in their response to the growth of the vaping population.

“It makes me wonder if they’ve become so used to battling the demons like big tobacco companies that they’re just continuing that same fight, not realizing they’ve already won it. This is a completely different product that needs to be treated differently,” From says.

Rob Cunningham, a lawyer and senior policy analyst for the Canadian Cancer Society, agrees that e-cigarettes are less harmful than conventional cigarettes, but he says restrictions are still needed. In any case, he says S-5 distinguishes between the two and places fewer burdens on manufacturers of vaping products.  

“This law will not affect the ability of adult smokers to purchase e-cigarettes or to switch to them,” he says.

“There is no way it should be considered acceptable for a nine-year-old to be sold e-cigarettes. Nicotine is addictive, and we don’t want youths to become addicted to it.”

However, David Sweanor, an adjunct professor with the University of Ottawa’s Centre for Health Law, Policy and Ethics, says the new law fails to strike the right balance between preventing new users of nicotine and helping existing ones.

“These restrictions all make sense for dealing with the onset of risky behaviour, but there is another leg to public health: reducing risk for people already engaged in that behaviour,” he says.

From says he would like to see some mechanism for opening up vaping to minors who want to switch from cigarettes without fear of violating the law, to reflect the fact that many current smokers are underage.

He says the harm-reduction failures he sees in S-5 may support a Constitutional challenge under s. 7 of the Charter, especially in light of the Supreme Court of Canada’s 2011 decision in Canada (Attorney General) v. PHS Community Services Society, which concerned the federal government’s attempt to shut down the Insite safe­injection site in Vancouver.

The nation’s top court overruled the government’s denial of a legal exemption granted to the site after finding it ignored evidence that the program had reduced harm associated with intravenous drug use.

“In that case, it involved people doing something that was technically illegal. Here, we’re talking about a perfectly legal activity that could stop people from smoking, saving thousands of Canadians every year and billions in health-care costs,” From says.

As cigarette sales continue to shrink in Canada, e-cigarettes are not the only emerging smoking product to have caught the eye of the Canadian Cancer Society.

The group has called for parts of S-5 to extend to the regulation of herbal water pipe products, and it has supported municipal bylaws around the country banning their use in workplaces or other places where smoking is not allowed.  

High-profile challenges to the bans have failed in Vancouver and Toronto, but the lawyer pioneering the latest attempt in Ottawa says he’s confident he can reverse the trend. Lawrence Greenspon acts for a number of shisha bar operators who plan to argue that Ottawa’s ban violates ss. 15 and 27 of the Charter by infringing on Arabic and Middle Eastern culture.  

“When the bylaw was put together, there was no attempt to try and take those cultural rights into account or to accommodate them,” Greenspon says.

None of Greenspon’s clients have been prosecuted since the bylaw came into effect last month, but Cunningham says he hopes the challenge will be defeated in court.

“A number of countries in the Middle East are taking action themselves against water pipes,” he says.

“Historically, smoking cigarettes was a big part of the culture in Canada, but times change.”

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