Feds must enforce vaping penalties to protect kids: advocates

Daryl Cura demonstrates an e-cigarette at Vape store in Chicago on April 23, 2014. THE CANADIAN PRESS/Nam Y. Huh 

OTTAWA -

Advocates on both sides of the vaping debate say the government must do more to enforce penalties for selling vapes to kids after a review concluded no changes to the legislation were warranted.

The Tobacco and Vaping Products Act aims to walk the narrow line between giving people who smoke a safer alternative to combustible tobacco products and protecting youth and people who don't already smoke from taking up vaping.

The act, which came into force in 2018, legalized the sale of vapes -- or e-cigarettes -- with or without nicotine. They are now found in specialty vape shops, convenience stores, gas stations and online retailers across the country.

Health Canada recently decided amendments to the law were not necessary after looking at feedback from provinces and territories, NGOs, members of the vaping industry and the public.

Its review said the government can use regulations to tailor industry rules instead, such as a proposed regulation to put limits on the sales of flavoured products.

But enforcement tools for rule-breakers may be limited beyond issuing warnings, the review said. It recommended that Ottawa explore other options.

"Given the evidence of repeated infractions and the limitations of warning letters, the development of additional tools that could respond to repeated non-compliance with a progressive enforcement approach could be explored," Health Canada said in the report, which was tabled in Parliament in December.

Online sales to minors have proven particularly difficult to police because the regulations around age verification "may not be sufficiently responsive, the report said.

A 2021 Health Canada review of vaping and tobacco activities had come to a similar conclusion, after finding that specialty vaping stores were particularly prone to rule-breaking.

The act already includes fines and penalties for offences but they haven't been leveraged, said Cynthia Callard, the executive director of Physicians for a Smoke-Free Canada.

"They gave themselves the powers when they passed the law in 2018," Callard said in an interview. "Now they're saying, 'Well, we have to look at something else,' without really detailing why they're reluctant to use the powers they have."

Health Canada's report shows the department inspected more than 3,000 specialty vape, gas and convenience stores in 2019, and seized more than 80,000 units of non-compliant vaping products.

During the pandemic, Health Canada made inspections virtual and focused on the promotion of vaping and nicotine products. It issued warning letters to 53 of the 304 retailers it inspected because of illegal social media posts.

In a statement Friday evening, a Health Canada spokesperson said that the department "has a compliance and enforcement program in place," citing the inspections. "All tobacco and vaping product retailers are responsible for knowing and complying with the requirements" under the law, the statement said.

"Health Canada enforces the legislative and regulatory requirements and, where necessary, will take compliance and enforcement action, including warning letters, stop sales, product seizures and criminal investigations."

Still, the review made no mention of laying criminal charges under the act, which come with hefty fines and even jail time for offenders.

Maria Papaioannoy, a spokesperson for Rights4Vapers, agreed that it would be helpful if Health Canada focused on enforcement, particularly when it comes to selling vapes to minors.

"We think that responsible vape shop owners do not sell to minors. We feel that responsible convenience store owners do not sell to minors," said Papaioannoy, whose group advocates for people who have used vaping to quit smoking cigarettes. "It is the black market."

There's not much research on the long-term health effects of inhaling e-cigarettes and the potential consequences of second-hand exposure, the government has said, but Health Canada does tout vaping as a safer alternative to smoking combustible tobacco products.

Papaioannoy said she was heartened to see the department admit in the review that it hasn't done a good job encouraging people who smoke to switch to vaping.

Data from the government's 2021 tobacco and nicotine survey found that about five per cent of Canadians over the age of 20 used vaping products, and the majority were people who smoke or used to smoke.

Among those people, about half said they were vaping in an effort to quit or reduce how much they smoked.

Youth vaping took off after the legalization of e-cigarettes but appeared to level off in 2021, with about 13 per cent of teenagers aged 15 to 19 vaping at least once in the past 30 days, according to the survey.

The December review is the first to evaluate the impact of the federal vaping legislation, though it did not address changes the bill also made to the regulation of tobacco products. Health Canada is aiming to review other aspects of the law in two years.

The report was supposed to be tabled by last May according to timelines laid out in the legislation, Callard said.

Physicians for a Smoke-Free Canada sought a Federal Court order in November to compel the government to deliver the review, but the government published it before the matter went ahead. Ottawa has not responded to the notice of motion.

Callard said she doesn't want to spend resources pushing the issue in court, but she is interpreting the lax approach to the timeline as a reflection of the government's enforcement of the rules in general.

"They themselves are not taking the law seriously," she said.

This report by The Canadian Press was first published Jan. 6, 2023.