Canada: Up In The Air: Health Canada Considers Further Restrictions For Vaping Product Advertising

Health Canada recently proposed measures to reduce the impact of vaping product advertising on youth and non-users of tobacco products. If implemented, these proposals would significantly change vaping promotional restrictions under the federal Tobacco and Vaping Products Act (TVPA).

THE LANDSCAPE: VAPING IN CANADA

Until recently, the sale of vaping products containing nicotine was effectively illegal in Canada. This changed on May 23, 2018, when the Tobacco Act was replaced with the TVPA, a regime that regulates the manufacture, import, sale, packaging and promotion of both vaping products and tobacco products.

Under the TVPA, vaping products not marketed for a therapeutic use can be sold without Health Canada authorization, provided they comply with the applicable requirements under the TVPA and the Canada Consumer Product Safety Act (CCPSA). Vaping products marketed for a therapeutic use (those with health claims) will still need to be approved through the Food and Drugs Act before they can be sold in Canada.

"Vaping product" is defined broadly to include devices that produce emissions in the form of an aerosol and intended to be brought to the mouth for inhalation of the aerosol, as well as parts, substances and mixtures intended for use with those devices, whether or not they contain nicotine (but excludes cannabis and cannabis accessories under the Cannabis Act).

Some of the key restrictions under the TVPA include:

  • Making it an offence to sell a vaping product to a person under the age of 18
  • Prohibiting the sale of vaping products that appeal to youth or that contain certain ingredients (such as caffeine) or flavours (such as confectionery or dessert flavours)
  • Prohibiting the use of certain forms of advertising, such as lifestyle advertising, sponsorship promotion, testimonials and endorsements, or promotions that would be appealing to youth or feature any prohibited ingredients or flavours.

The TVPA also gives the government the power to make further regulations relating to things like product standards, industry reporting requirements, and packaging and labelling requirements.

PROPOSED REGULATORY MEASURES

Health Canada is considering limits on the placement and content of advertisements, as well as the display of vaping products at the point of sale.

Placement

The proposal would limit where vaping product advertisements can be placed:

  • Point of sale: Advertisements would not be permitted at any point of sale where youth is allowed access, including online. Exceptions would be available under certain conditions, such as signs that indicate the availability and price of products. Health Canada is also considering restrictions on the display of vaping products at points of sale where youth have access.

These restrictions would not apply to points of sale where youth do not have access (for example, a vape shop that does not allow youth on its premises or that blocks youth access to its website), as long as the products and advertising cannot be seen from outside these places.

  • Public places: Signs would not be permitted in certain public places where youth have access, such as: shopping malls; recreation, arts or cultural facilities; parks; in public transit vehicles and stations; billboards and other outdoor physical supports for commercial advertising.
  • Broadcast media: Advertisements would not be permitted in broadcast media during or adjacent to (within 30 minutes before or after) all children's and youth-oriented programming.
  • Publications: Advertisements would not be permitted in children's and youth-oriented publications, including electronic publications such as websites and social media platforms.

Content

The proposal would also require advertisements to include a prescribed health warning to highlight the health hazards of product use. For example, vaping products that contain nicotine or are intended to be used with a vaping liquid that contains nicotine may be required to state:

"Vaping products contain nicotine. Nicotine is highly addictive. Vaping products also release chemicals that can harm your health. Youth and adult non-smokers should not vape."

The content, format, size and manner of display for the health warning would be prescribed by regulations. Attribution of the health warning to Health Canada would be optional. Where the advertisement is audio only, the health warning would have to be read.

Finally, Health Canada is also considering restrictions on the visual content of advertisements to only text and illustrations or images of the vaping product or its package.

IMPLICATIONS AND NEXT STEPS

If implemented, these proposals would significant limit the scope of vaping advertising under the TVPA. However, the impact of these changes would vary across the country. While many provinces already have vaping legislation, the nature and scope of these restrictions vary widely.

For example, most provinces have vaping legislation that regulate point of sale advertising and product displays. However, these requirements range from very permissive (e.g., promotional materials are permitted as long as they comply with the TVPA) to very strict (e.g., all promotional materials and product displays are prohibited except for limited forms of prescribed signage). Furthermore, the vaping legislation in some provinces already contemplate bans on outdoor signage such as billboards and signage on vehicles, buildings and other structures. Changes to the TVPA will likely have the largest impact in Alberta, Saskatchewan, Nunavut, Yukon and the Northwest Territories, where there is currently no provincial or territorial vaping legislation.

It also remains to be seen how some of these proposals will be interpreted and implemented. Age gating in online media is one area of uncertainty. For example, it is unclear what forms of age verification or website gating may be sufficient for a website to be considered a point of sale where youth do not have access. It also remains to be seen which social media platforms will be considered children and youth-oriented and whether the use of age gates would bring some portions of these platforms outside of the proposed restrictions.

The consultation is currently open for comment. Stakeholders and interested members of the public have until March 22, 2019 to provide feedback on the proposal.

For permission to reprint articles, please contact the Blakes Marketing Department.

© 2018 Blake, Cassels & Graydon LLP.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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