June 2, 2017
Some weeks ago, when I concluded my Second Reading speech, I did so with the hope that expert witness testimony at our committee stage would clarify some of the largest issues around Bill S-5 and help us, as legislators about to amend the Tobacco Act, “get it right”. Here, today, at Third Reading of Bill S-5, An Act to Amend the Tobacco Act and the Non-smokers’ Health Act and to make consequential amendments to other Acts, as Opposition Critic of this Bill, I shall try to report back to you the essence of what we learned during our committee hearings, as well as the rationale for the amendment I made that was accepted unanimously by committee members. This amendment to Bill S-5 is now a part of our Committee Report.
The Standing Committee of Social Affairs, Science and Technology held 5 meetings, heard from 21 witnesses, received more than 35 formal briefs and countless other submissions. You have already heard from the Bill’s sponsor, Senator Petitclerc, about some of the issues our Committee struggled with during our hearings, and I shall try not to be too repetitive.
However, I do want to remind you that Bill S-5 amends the Tobacco Act to add a new and separate class of products, vaping products, and proposes to regulate their manufacture, sale, labeling and promotion. What has been emphasized by both the Minister of Health and the officials at Health Canada during their own testimony is that this legislation is an attempt to balance the government’s objectives of protecting youth from the dangers of nicotine addiction while allowing adult smokers to access vaping products. As Committee members heard, this balance is a precarious one, said by some to be overly restrictive and by others not restrictive enough.
As we now know, vaping is a new societal phenomenon, perhaps a decade old. Witness testimony confirmed that it will take two or three decades more before we fully understand the science and safety issues associated with vaping and the devices used, such as e-cigarettes. I would like to begin with a brief summary of some of the evidence Committee members heard around the largest public health questions today because it provides a flavor of how incomplete our best understanding really is.
There are four big unknowns in the public health discussion of vaping and e-cigarettes: are e-cigarettes effective in smoking cessation; will e-cigarettes lead youth to tobacco use – often termed the “gateway effect”; how toxic are the emissions of the inhaled vapours for e-cigarette users; and are there risks from second-hand exposure to vapour?
First then, how effective are e-cigarettes as an aid in smoking cessation?
The Canadian Vaping Association testified before our committee and explained that: “The number of vape product shops has grown throughout Canada, with a current estimate of retail outlets and manufacturing facilities numbering over 800, representing well over 5,000 employees, serving hundreds of thousands of customers and generating over $350 million in revenue… It has been a direct result of a substantial demand for these products by millions of smokers in Canada seeking an alternative to cigarettes.”
Dr. Hammond, Professor in the School of Public Health at the University of Waterloo, told us that we need more evidence to understand whether e-cigarettes are equally effective as other forms of nicotine replacement therapy. He also cautioned that one of the dominant forms of use in Canada is “dual use, where you smoke and use a vapourized product. The best science we have to-date suggests that there may not be any health benefit from doing that – that you have to get off the smoke. Some people may be using it to cut back and plan to quit over the long term and that will be a positive outcome.”
Dr. Britton, Professor of Epidemiology at the University of Nottingham and Director of the UK Centre for Tobacco and Alcohol Studies also emphasized our lack of understanding about where e-cigarette use sits relative to established licensed nicotine replacement therapies.
In fact he suggested we should consider e-cigarettes an alternative to smoking, not a therapy, first and foremost… And, …so it is inevitable that there will be substantial dual use. “The evidence is good that smokers who start using an alternative nicotine product alongside smoking are much more likely – twice as likely – to progress to quit than those who do not. So, the benefit to health is negligible while they’re dual-using, but those who then make the step completely to an alternative source will get a huge benefit. The key thing is we shouldn’t think of these as cessation aids but as tobacco substitutes.”
Did we hear sufficient evidence at Committee to suggest e-cigarette use will make it more likely youth will go on to use tobacco, the so-called “gateway effect”. When asked about this particular issue in Committee, Dr. Hammond explained:
“We will actually have a study coming out in a medical journal very soon showing that. We followed people up over time. We followed 20,000 kids over 12 months. Everyone was a non-smoker at the start. The kids among those who were non-smokers who tried a vaping product were much more likely to go on to become a smoker. But here’s the thing with that: We call it the gateway effect. It’s true for tobacco, alcohol and marijuana. Most of that is that the kids who are likely to smoke are also likely to try a vaping product. This is again, in the fog of all these findings. Is there an association? Yes? Is it causual? It’s probably just the common factor of the kids who like to do those things do those things.”
Dr. Britton echoed Dr. Hammond’s comments: “…children who are more likely to try vaping products are also much more likely to be trying cigarettes anyway. Is it causal, probably not.”
Both of these witnesses who are engaged in serious research in this field stated that it is “more crucial than ever to be monitoring smoking and nicotine use behaviours in young people and in adults…as we do not entirely know what’s going to happen as these products evolve.”
Dr. Peter Selby of the Canadian Centre for Addiction and Mental Health also concurred: “Whether these youths will then transition to cigarettes, it’s an open question, but one would have to wonder why you would move from a cleaner, more functonal product to a more dangerous product”
The third big public health issue is how toxic are the emissions of the inhaled vapours for e-cigarette users, and the general agreement was harmful but less harmful than smoking. Dr. Britton told us that “we don’t know the long term effects of the other components of the vapour.
In fact, we don’t know what the long term effects of inhaling pure nicotine would be. … We don’t know the long-term effects of exposure of the lung… to all those vapour solutions, and then the toxins that are produced in the vaping process from the constituents of the fluid…Those things I expect to cause lung damage in the long term…We would expect the spectrum of damage to include a similar spectrum of lung disease to existing smoking, but at a much, much lower level of risk. So there will, in my opinion, over the next 50 years, be a handful of cases of lung cancer caused by vaping, but that has to be set aside the likelihood of tens of thousands of cases of lung cancer caused by smoking.”
Witness testimony indicated that this debate has been one of the more difficult ones for the public health community because of what appears to be contradictory evidence about the long-term health effects of vaping.
Dr Britton and Dr. Hammond concurred: “Electronic cigarettes are not safe, or it is very unlikely they are safe. We won’t know how safe they are until two or three decades have gone by. But we can predict, from the levels of toxins in the vapour, that that risk will be very low relative to cigarette smoking, very unlikely to exceed 5 per cent of the risks of smoking.”
As for second-hand exposure to e-cigarette vapour there was agreement that, based on inferences from what we believe to be the case with direct health effects, there would be fewer chemicals in the air, and evidence for harm from vapours to others is tenuous at best. However it should be noted that reference was made by Melodie Tilson of the Non-Smokers’ Rights Association to faulty methodologies and lack of current understanding about how to measure these chemicals and particles likely released into the air.
What were some of the most challenging, even contentious issues for Committee members?
There was intense discussion during our committee hearings about the concepts of harm reduction and comparison of risks as they relate to e-cigarettes and vaping, and how to convey that type of information to consumers. Dr. Britton, Professor of Epidemiology at the University of Nottingham and Director of the UK Centre for Tobacco and Alcohol Studies, underlined that this was precisely the reason he asked to testify before our Committee. Permit me to quote his exact words: “the reason I asked to give evidence on the Canadian bill is simply the clause about making comparisons with the safety of smoking, because I think it is absolutely vital that health professionals can say to smokers, ‘we don’t know the long-term risk of these products. It would be much better if you quit all smoking and nicotine use forever, but if you can’t do that, then it is a no brainer to switch to a less hazardous product’. I don’t think there can be any question that electronic cigarettes are less hazardous than smoking.”
Dr. Britton did say that the UK has taken a “harm reduction” position in nicotine addiction, that focuses on cessation, even if it is only to switch to an alternative source of nicotine and give up the smoke, the source of the toxins that kill.
Pippa Beck of the Non-Smoker’s Rights Association made reference to the spirited debate around what she called “the degree of less harm”. Is it really 95% less harmful as we often hear or more like in the 60-80% realm as WHO often states.”
In Minister Philpott’s testimony before our Committee, she did indicate that Bill S-5 does not prohibit the publication of legitimate scientific work in regard to vaping products, nor does it prohibit people from explaining the relative risks of vaping products as long as it does not promote a particular product or brand.
In other words, the Minister said: “we are trying to prevent the promotion of a product using health claims for commercial purposes. But it does not proscribe or limit how people talk about vaping products. A vaping shop could have information, including peer review scientific journals, can speak about a class of products, share information, but all part of a discussion to understand a body of literature so people understand. However this is not permitted to be part of an advertising campaign for commercial purposes”
This is clearly intended as a response to the tobacco industry who have asked for the right to advertise all their products on a continuum of health risk.
Perhaps one of the most provocative and conflicted discussions we had at Committee hearings was around promotion and advertising. Witnesses from the Nonsmokers Rights Groups, the Canadian Lung Association, and the Canadian Cancer Society, presented very strong argumentation to ban all lifestyle advertising for vaping and e-cigarettes. They stated that lifestyle advertising would influence young people as they would still be exposed to it, however indirectly.
When asked why the restrictions on vaping advertising are not as tight as for tobacco, the Minister of Health responded that the Charter only permits such tight restrictions, such as those around tobacco, when evidence is absolutely abundant that the public health risks associated with these products outweigh the rights of the industry to promote themselves. “In the case of vaping products”, she said, “we are not dealing with the same type of balance in terms of firm evidence of harm and that being outweighed by the ability of an industry to be able to promote itself.“
But Dr. Hammond, Professor in the School of Public Health at the University of Waterloo, expressed serious concerns about the level of advertising permitted under the bill. “It would be naive for us to assume that adult-oriented advertising will not increase the appeal of vaping products among youth, and bans on youth-oriented advertising are very difficult to enforce. The question is whether it will increase the types of use that benefit public health. E-cigarettes are used for many reasons. Only one of them results in public health benefit, and that is if used by smokers who are trying to quit. In my opinion, smokers do not require lifestyle advertisements to encourage them to switch. Most smokers switch not because vaping is glamorous, sexy or fun, but because they are addicted to nicotine and they don’t want to die from smoking. In conclusion, it’s my opinion that vaping products should not be promoted at all through lifestyle advertising, and advertising should not appear on TV, radio or other major channels.”
In fact, as Senator Petitclerc pointed out in her speech, our Committee did amend the Bill to provide for a possible tightening up of the advertising regulations after Bill S-5 comes into effect.
Health Canada did recognize that there was a need to ensure that the government has the flexibility to respond to future advertising tactics, and to make new regulations that would, for example, specify where, and at what time, advertisements of vaping products could be communicated.
This legislation is complex, evidence we heard in Committee is inconclusive, and the regulations are still to be written, and designed to be ever-evolving based on a changing landscape. The rationale for this flexibility has been that vaping can offer vast potential health benefits compared with smoking, but maximizing those benefits requires careful monitoring, surveillance, and risk management. Also, the field is evolving rapidly as for the science, and it will be necessary to respond to new study results through additional restrictions or even a broadening of the regulations. And, we cannot doubt that the technology will keep changing, that devices will become more efficient in delivering nicotine, that big multi-national tobacco companies will introduce their own e-cigarettes and other devices, with all the clear commercial interests that this entails. So, along with the benefits inevitably will come unintended consequences.
In response to my questions to the Minister of Health and Health Canada officials about the issues of public health safety and oversight, we were assured by Hilary Geller, Assistant Deputy Minister from Health Canada, Healthy Environments and Consumer Safety Branch that they are funded to implement the Bill and will have an “active program of market surveillance and intelligence.”
Ms. Geller did say that changes can be made through the regulations and will not require re-opening the legislation. We were assured that the initial regulations would be monitored closely, and that there is a budget of $7 million dollars to enhance public awareness of the risks, yet also the potential harm reduction of vaping products. As for the big question of ongoing monitoring and surveillance in order to feed into the purposeful flexibility of these regulations, we were assured that there are several opportunities in existence:
- The Canadian Tobacco, Alcohol and Drug Survey is conducted every two years along with the Student Survey;
- Canadian Institute for Health Research (CIHR) and Canadian Institute for Health Information (CIHI) already have a close relationship with Health Canada in the area of substance use, and will have a role of research and informing regulations so that they are up-to-date with emerging evidence;
- The Canadian Consumer product safety Act is very robust, and any vaping product that has been shown to be unsafe can be rapidly recalled by Health Canada;
- There are public opinion research vapers panels to understand how youth respond to the products; And,
- There is a reporting regulations plan for regular vaping data collection to be required, similar to what is currently in effect under tobacco reporting regulation for industry.
What are we to conclude? There are many players who will be involved in the oversight of this piece of legislation.
The question arises as to how best to ensure that the planned oversight and monitoring will result in a coordinated translation to regulations that are regularly updated to protect the health and safety of Canadians, especially those most vulnerable, youth. And my amendment which I will discuss a little later, will offer this assurance.
There is, of course, another component to this piece of legislation which I must address. It provides authorities for Health Canada to implement regulatory measures to standardize the appearance, size and shape of tobacco packaging and products. We heard from a number of stakeholders on this issue and, as one would expect, the testimony was contradictory.
Imperial Tobacco; Rothman’s, Benson and Hedges; Canadian Convenience Stores Association; and National Coalition against Contraband Tobacco, all claimed that the proposed measures to standardize tobacco packaging in this Bill will result in an increase in the already sophisticated contraband market in Canada.
Gary Grant, a retired veteran of the Toronto Police Service and Spokesperson for the National Coalition against Contraband Tobacco, warned us:
“About one in three cigarettes purchased in Ontario are illegal. In northern Ontario, it’s more than two in three. Quebec has identified a contraband incidence of about 15 per cent… Plain packaging regulations will literally give the blueprint for replicating the packaging of the legal product, including graphic warning labels, colors, fonts and other necessary materials…It would be nearly impossible for consumers to distinguish what is legal versus illegal, and only police with the proper investigative tools could do so. If anything, creating counterfeit products will now become viable, allowing organized crime to strong-arm legitimate retailers into selling illegal product. The current complex packaging prevents this.”
The Coalitions’ argument was pressed further by the tobacco industry. Rather than debating measures which standardize the appearance, size and shape of tobacco products, they argued that the Federal Government should be tackling the active contraband tobacco market in Canada and implement more anti-contraband tobacco measures into the Tobacco Act.
With specific regard to the important model of the Australian experience, according to Eric Gagnon, Government and Regulatory Affairs Director at Imperial Tobacco, “…plain packaging simply doesn’t work. Despite what the groups will tell you, the truth is that according to data from the Australian Government, there has been no acceleration in the smoking rate decline… Australia, like in Canada, was already declining year on year and that trend did not accelerate after plain packaging.”
This statement, as you can imagine, created some dissension in Committee. The Canadian Cancer Society, the Heart and Stroke Foundation, the Non-Smokers’ Rights Association, and the Canadian Lung Association refuted all argumentation presented by industry members.
Speaking specifically to the industry arguments on the lack of evidence to support standardized measures of tobacco products, Rob Cunningham, Senior Policy Analyst of the Canadian Cancer Society stated at Committee that,
“The evidence is overwhelming. Abundant studies conducted worldwide provide compelling evidence that plain packaging would be effective. More than 140 studies, and 40 studies specifically on package promotion and plain packaging, exist…Industry claims should be disregarded as being completely without merit…”
And with reference to the Australia experience, Mr. Cunningham stated that, “the Tobacco industry is spreading misinformation.”
Dr. Hammond, Professor in the School of Public Health at the University of Waterloo had this to say to committee members, “I admit to being somewhat alarmed about some of the misinformation on plain packaging, in particular the impact of plain packaging in Australia. It is a fact that Australia experienced the largest ever decline in smoking prevalence after plain packaging was implemented. The most extensive analysis to date determined that after adjusting for tax increases and other measures that were implemented over the same time, plain packaging resulted in more than 100,000 fewer Australian smokers. If plain packaging were to have the same impact in Canada, that would translate to 190,000 fewer smokers. The scientific evidence on plain packaging includes close to 100 published scientific studies, which are consistent with the Australian data.“
Indeed, Australia was the first country to standardize the appearance, size and shape of tobacco packaging and products. Most recently France, the UK and Ireland have also moved forward with standard tobacco packaging legislation but it is far too soon to understand the effects. We have all received information from both sides of this question and controversies do exist. Important to note is that Bill S-5 leaves the specifics of plain packaging unclear, such as exact shape of the boxes and whether the actual cigarette tubes will have any brand marks. The plans are to write these particular regulations following full analysis of the Department consultation. We were told in Committee that the Deputy Minister received a report from the Australian government describing their experience with plain packaging, and, mentioned was that the Department of Immigration and Border Protection found no evidence to suggest that plain tobacco packaging has had an impact on the illicit tobacco markets since its introduction in 2011. The Committee did request to see that letter and we have not yet done so, to-date, to my knowledge. However, the Health Canada Assistant Deputy Minister did state that they would take every means possible to monitor the situation in Canada.
It must be underlined that consultations on the form such regulations should take have just been completed by the Ministry and may also be addressed in the Tobacco Control Strategy consultations.
Shall we consider my opening statement – my hope that Committee hearings would result in a more conclusive understanding of the largest public health and safety issues that we might address with Bill S-5. As you can by now surmise, this is a young, and rapidly changing field, with many uncertainties because of the unformed science, as well as legislation that leaves a great many details to be worked out in the regulations. There are many departments and agencies and stakeholders involved in working this through. The question that was begging itself to be considered was, how would we, as legislators, assure ourselves that we have done the right thing, that the legislation had succeeded in the fine balancing act to protect youth while permitting smokers to make the choices for less harmful alternatives. Based on all uncertainties, I concluded there was reason to make a serious amendment.
My amendment, which passed unanimously in Committee, will oblige a review of provisions and operations of the Act, three years after it comes into force, and every two years after that. The Minister must, no later than one year after the day on which the review is undertaken, cause a report on the review to be tabled in each House of Parliament.”.
We discussed the timeline in Committee and it was unanimously agreed that three years would be an adequate length of time for regulations to be written and integrated into this legislation, fully operationalized, and evaluated at the outset.
Remember that we did hear that there are at least 3 existing, permanent, data collection and research sources to feed ongoing monitoring and surveillance around S-5. I listed them earlier for you. Thus it should not be too onerous, or burdensome, for Health Canada and the Minister to table a report in both Houses of Parliament within one year of the report being undertaken, that is, in the fourth year following enactment of Bill S-5.
I support this legislation, Bill S-5, only with the assurance that the amendment for a full review and report within 3 years, offers.