Electronic cigarettes with nicotine ("e-cigarettes")
and cartridges of nicotine solutions are widely available to
consumers despite Health Canada's warning that their
importation, advertisement and sale are prohibited without
authorization. There remains confusion over the legalities of their
use, especially in public places and workplace settings.
What is the legal status of e-cigarettes?
This is what we know:
According to both Health Canada and the Federal Court of
Canada,1 electronic smoking products containing nicotine
are considered drugs under the Food and Drugs
Act2 ("Act") and the Food and Drugs
An advisory and notice have been issued by Health Canada
warning Canadians not to purchase or use electronic smoking
products, as well as asking all persons importing, advertising or
selling electronic smoking products in Canada without the
appropriate authorizations to stop doing so;
The nicotine delivery system within e-cigarettes must meet the
requirements of the Medical Devices Regulations;4
Establishment licenses issued by Health Canada are needed prior
to importing and manufacturing e-cigarettes;
The Federal Court of Canada has found that electronic
cigarettes are used mainly to deliver nicotine; and
No electronic smoking products have been granted market
authorization in Canada and their sale is currently not compliant
with the Act.
This is what we don't know:
Whether electronic smoking devices that do not deliver nicotine
fall within the scope of the Act;
Whether electronic cigarettes with nicotine-free cartridges, or
electronic cigarettes without cartridges, can be legally sold,
imported or advertised in Canada;
Whether a compliance or enforcement policy will be issued by
Health Canada; and
Whether e-cigarettes will be subject to the identical
regulatory controls as tobacco products.
What are the takeaways for the workplace setting?
Employers are reacting to e-cigarettes. In the United States,
Wal-Mart Stores, one of the largest employers, has combined
e-cigarettes with traditional cigarettes and has banned them from
all of its stores and offices. The same can be said for other large
U.S. employers, such as General Electric, Target and Home Depot. A
similar approach has been taken by employers in Canada. The basis
of the ban is that e-cigarettes either contain a form of nicotine,
a tobacco derivative, or are used mainly to deliver nicotine.
There is some debate surrounding electronic cigarettes that are
not expressly intended to deliver nicotine, and whether such
products should be treated in the same manner as traditional
cigarettes. Some employers have responded to this issue by relying
upon their "scent-sensitive" or "scent-free"
workplace policies as justification for the ban on all forms of
electronic cigarettes in the workplace.
A further debate relates to the potential effectiveness of
e-cigarettes as a smoking-cessation aid. Although there is no
conclusive evidence, this issue is being followed carefully by
employers and human resources managers who have smoking-cessation
plans for employees, particularly as this may give rise to a duty
to accommodate. At this time, Health Canada has not approved
e-cigarettes as a smoking cessation or nicotine replacement
Several non-smoking action groups have stated that after the
successful ban on smoking in the workplace and public places, the
proliferation of e-cigarettes has re-normalized smoking and
undermined progress in tobacco reduction use.
Health Canada has yet to pronounce itself on the legal framework
surrounding the use of e-cigarettes and whether or not they should
be subject to the identical regulatory controls as tobacco
products. However, for the time being, given the health and
regulatory uncertainties, many employers have decided to treat
e-cigarettes like traditional cigarettes, and have clearly
identified them as being part of a tobacco-free workplace
Employers should continue to monitor Health Canada's
regulatory advisories regarding e-cigarettes. Employers with
questions about establishing policies or how to adapt e-cigarettes
to your current workplace policies should contact one of our
members of McMillan's Employment and Labour Relations
1. Zen Cigarette Inc. c. Santé Canada,
2012 FC 1465, 230 ACWS (3d) 326 (‟Zen "). 2. Food and Drugs Act, RSC 1985, c F-27. 3. Food and Drug Regulations, CRC, c 870. 4. Medical Devices Regulations,
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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