Response to BC Vapour Products Intentions Paper
January 25th 2020 1:32am | Revised January 25th 1:36AM
Response to BC Vapour Products Intentions Paper

January 24th, 2020


British Columbia Ministry of Health

PO Box 9646 Stn Prov Govt

Victoria, BC

V8W 9P1


By secure email:  [email protected]


Dear Hon. Adrian Dix ,


It is my pleasure as President of The Canadian Vaping Association (CVA) to present the culmination of our consensus report addressing your department’s “Vapour Products Intentions Paper”.


As you are aware, CVA is a membership-driven not for profit organization recognized by government and media as the official and objective voice for the vaping industry in Canada. CVA advocates on behalf of the hundreds of manufacturers of e-liquids and vape hardware and adult-only access product vape shops, who serve the hundreds of thousands of Canadians who have chosen vaping as an alternative to the dangers of smoking cigarettes. Our membership does not include combustible tobacco organizations, nor do we receive funding from any combustible tobacco organizations.  


As you may know, we have been working closely with your office and other departments within the Government of British Columbia on legislative initiatives and harm reduction regulations surrounding the use of water-soluble nicotine e-liquid vaping products.


CVA boasts membership from coast to coast in every province. The organization is operated by a governance structure consisting of representation from all parts of the country. We are grateful for the opportunity to provide the Health Protection Branch with our thoughts, views and considered opinions on your proposed regulations. Our efforts herein comprise the input from CVA public policy experts, our professional legal advisory and specially selected members of CVA and others from across Canada, who assembled over the course of the past several weeks to discuss and debate each section of the proposed regulations. We took your challenge seriously and appointed a working group of notable individuals from the vaping industry including those specializing in public policy, law, manufacturing and sales sectors across Canada. It is through their efforts that CVA developed this submission.


We look forward to continuing our work with the Ministry of Health and the government as it prepares effective regulations for the industry. 



Respectfully submitted,



Sam Tam

President – The Canadian Vaping Association


cc:       Darryl Tempest, Lead GR Counsel and Executive Director             

CVA Board of Directors

            Rajeev Sharma Esq.  Sharma Lawyers LLP

            



1.0 Introduction


Following our review of Health Protection Branch “Vapour Products Intentions Paper” dated December 2019, we are pleased to submit the following feedback on the proposed regulations described within.


2.0 Considerations


CVA considered the potential regulations in the “Vapour Products Intentions Paper” and, through a series of face to face and virtual meetings, CVA solicited input through our CVA Standing Committee made of a cross-section of industry players including members. Many of those who participated in these meetings are public policy experts, advocates, vape product shop owners and manufacturers. The outcome of these discussions, including the associated recommendations, are herein presented.


We agree that strong regulations are required to protect the public and to address the issue of youth uptake of vaping in Canada, as well as to assist in educating smokers about their relative risk as it relates to vaping as a harm reduction tool. As vaping has been shown to be at least 95% less harmful than combustible tobacco, appropriate regulations that balance the advantages of vaping over smoking with the potential impact of these products on our youth will result in significant benefits to public health. Through well designed regulations this industry can be of great assistance to the government, health agencies and the public overall. The industry will educate and supply consumers with regulated water-soluble nicotine e-liquid and hardware, as part of a strategy to address both combustible tobacco use and the recent exposure to black market, non-water-soluble devices. The CVA is aware of the disturbing lung illness diagnoses reported in the United States and Canada. Cases like this are very unsettling, particularly given that they have all been clustered within the last five months. It has been widely reported and verified by the CDC that other substances such as THC, Vitamin E acetate, or other non-sanctioned chemicals, have been inappropriately introduced into the product. This is a clear public health risk. We must work together to develop appropriate regulations to ensure that the public is not further encouraged to go to the black market where unregulated products may cause significant harm, while still ensuring the protection of our youth. Our recommendations to address these issues are presented below in relation and response to each of the proposals outlined by your deportment.


2.1  Part 1 Proposed Provincial Regulations  


We are providing feedback for consideration surrounding each of the proposed Provincial Regulations, namely:


  • -Prescribe nicotine as a health hazard;
  • Restrict nicotine concentration in vapour products;
  • Restrict the sale and distribution of e-substances and nicotine containing products;
  • Restrict the sale of flavoured vapour products;   
  • New labeling, packaging and health warning requirements; 
  • Strengthen restrictions on public advertising. 


Please see the Canadian Vaping Associations recommendations and responses for each:


  1. Proposal 1:  Prescribe Nicotine as a Health Hazard


The intent behind this proposal is to identify both nicotine and e-substance vapour products without cannabis and nicotine as health hazards such that the province can then place conditions on activities such as sales, distribution, marketing, promotion and messaging. This proposal also includes the intention to eliminate the sales of all vape products that do not contain any cannabis or nicotine.  


While some may deem nicotine as a health hazard due to its addictive nature, it is not all that different from caffeine. Regardless, we are not against the activities described above being limited to some extent by conditions imposed by the government as a method of protecting youth. However, of great significance to public health is the second part of this proposal which would eliminate the sale of water-soluble e-liquids that do not contain nicotine. It is these nicotine free e-liquid vape products that can be used by reformed smokers as the final step in eliminating their dependency on nicotine.


CVA Recommendation:


We recommend that the Health Protection Branch follow national regulations surrounding nicotine free e-liquid to ensure British Columbia’s vape businesses are not at a disadvantage (retailers within the province and manufacturers that sell their products out of province) and that consumers have access to regulated nicotine free water-based vape products they wish to utilize in their transition to a nicotine free lifestyle.


The goal of the vaping industry has always been harm reduction for adult smokers. Reducing nicotine intake has been a key element of this goal. Many former smokers have greatly reduced their nicotine intake, typically starting with higher nicotine level vape products, such as those containing 20 mg/mL and reducing to 3 mg/mL after a few months of use. While 0 mg/mL vape products make up a smaller segment of the adult vape market, it is the pathway many have used to eliminate their nicotine dependency. According to the study “Evaluating Nicotine Levels Selection and Patterns of Electronic Cigarette use in a Group of “Vapers” Who Had Achieved Complete Substitution of Smoking”, 64.9% reported that from the time of smoking cessation to the time of the interview (8 months median duration of vaping use) they reduced the nicotine concentration they were consuming.


While the intent states “Research suggests youth start vaping by using flavoured products that do not contain nicotine” we have seen significant amounts of research and data which supports the opposite.  The 2019 National Youth Tobacco Survey (NYTS), released by the Centers for Disease Control and Prevention (CDC) and the FDA, shows that flavors are definitely not the main reason kids vape. Rather, curiosity is the leading factor. Among the teens who were surveyed, 56.1 percent listed curiosity as a reason they tried vaping products. This is more than double the next most popular reason, “friend or family member used them” (23.9 percent), while flavours came in third at 22.3 percent. Additionally, we have all seen the youth experimentation videos surrounding vaping, which show teens vaping the highest nicotine concentrations available on the market in order to achieve a “nicotine buzz”. This demonstrates that many of the youth vaping are not interested in the flavours but rather in high nicotine concentrations. 

We recommend that 0 mg/mL products be available within product vape shops, in alignment with your government’s regulations surrounding access to flavours. Adult only access product vape shops have been at the forefront of restricting youth access since its inception, implementing age restrictions before legally required. Within these age restricted spaces, adult vapers must continue to have access to these zero nicotine vape products as a final step in their journey to becoming nicotine free.


  1. Proposal 2: Restrict Nicotine Concentration in Vapour Products


This proposal contains three distinct sections:

  • the e-liquid nicotine strength must not exceed 20 mg/mL; 
  • e-cigarette tanks and pods cannot exceed a capacity of more than 2 mLs; and, 
  • the maximum volume of nicotine-containing e-liquid for sale in one refill container cannot exceed 10 mLs. 


CVA Recommendation


We are completely aligned with the first point in the proposal and thoroughly believe that this regulatory change will have the greatest impact possible on youth uptake. Tobacco brand vape products that feature high nicotine levels to produce a “nicotine buzz”, alongside the associated aggressive marketing campaigns and extensive sales channels that utilize multiple access points without age restrictions, are the key elements that have caused the significant increase in youth uptake. In order to deal with the issue of youth uptake, we must remove vape products from their view, actively encourage regulations that will make it much more difficult for youth to purchase these products and restrict nicotine levels to 20 mg/mL.


The second and third points in the proposal are very concerning as it relates to vaping as a harm reduction tool. As stated above, vaping is a tool for former smokers that are looking a far less harmful alternative to combustible tobacco. The 2 mL tank and pods proposed would hinder access for the tens of thousands of vapers in BC to obtain the products they require in their path to both quitting smoking and reducing their nicotine intake. This restriction would put closed pod systems at a great advantage over the open tank systems, as very few open systems feature 2 mL tank sizes. This will remove almost 95% of the products from the market and will push vapers to the smaller closed pod systems which feature far higher nicotine strengths. Lower nicotine free base e-liquid requires larger tank sizes to be effective, thus this proposal will drive consumers to vape higher nicotine levels based on both product availability and functionality. The smaller tank sizes would also drive some vapers to use e-liquids with higher nicotine concentrations in order to reduce their e-liquid consumption by volume, thus eliminating their need to continuously refill or replace tanks.


While the European regulations do limit tank size, the decision there was made to address the concern of child resistant tanks. In Canada regulations have been developed to ensure child resistant tanks and are described in “Canada Gazette, Part II: Vaping Products Labelling and Packaging Regulations”. As a result of these regulations, we can avoid the pitfalls of small tank sizes, and the related increase that would have in nicotine strength utilization, while still ensuring the protection of our children. Additionally, the 2 mL tank limitation will make it very difficult to meet the new regulations surrounding child resistant mechanisms as required by “Canada Gazette 2: Vaping Products Labelling and Packaging Regulations”.


The proposal to cap e-liquid to a 10 mL bottle size again presents many challenges for the industry and for consumers. It carries the same impacts as the 2 mL tank, where it puts closed pod systems with higher nicotine levels at an advantage by eliminating 99.9% of the open system products in the market. With the new regulations coming through “Canada Gazette, Part 1, Volume 153, Number 51: Vaping Products Promotion Regulations” and “Canada Gazette 2: Vaping Products Labelling and Packaging Regulations” it would be impossible to have compliant labels, causing these products to become obsolete and no longer able to be manufactured in Canada. These regulations require specific toxicity warning statements, health warnings and a nicotine concentration level statement on the bottle at specified font sizes. Limiting the bottle size to 10mL would make it impossible to meet the federal government regulations surrounding labelling and packaging.


An additional key point relating to both the second and third parts of this proposal relates to affordability for youth. The BC Government made a very clear statement that they want to make vape products more costly and therefore harder to obtain by youth. Both proposals act counter to this goal as it promotes the advantages of big tobacco vape products - closed pod systems are much cheaper while featuring high nicotine levels. Additionally, 10 mL e-liquid products cost much less than the standard 30 mL and 60 mL bottles, making them more affordable for youth. As such, these proposals will only make it easier for youth to vape while incentivizing adults to purchase products from out of province in the 30 mL, 60 mL and 120 mL sizes available to them today.  


In summary by limiting the tank size to 2 mL and the refill containers to 10 mL the following unintended consequences will take place:

  • Consumers will be forced into high nicotine vape products and closed pod systems, based on lack of availability and functionality.
  • Consumers will purchase their vaping products out of province putting provincial retailers and manufacturers out of business which will result in lost jobs and economic outflow, alongside an increase in the sale of black-market products or unregulated products purchased from other provinces or countries.
  • Smaller tank and bottle sizes will make these products more affordable for youth.


Therefore, we recommend:

  • The 10 mL restriction should be removed from the proposal in order to allow compliance with Health Canada’s Labelling and Packaging Regulations requirement; 30 mL, 60 mL and 120 mL bottle sizes align with the global supply chain.
  • No limitation on tank size capacity as federal regulations within “Canada Gazette 2: Vaping Products Labelling and Packaging Regulations” require child resistant mechanism for atomizers and tanks. This provides the consumer safety mechanism necessary from protecting the public from accidental ingestion and a limitation in tank size will make it difficult, if not impossible, to meet these requirements.


  1. Proposal 3: Restrict the Sale and Distribution of E-substances and Nicotine Containing products 


We fully support any proposals that impose limitations on the sale of vaping products outside of age restricted environments and that require licensing, reporting, and differentiation between specialty product vape shops and non-age restricted retailers. We have seen positive results in working with the Government of Ontario who employs a similar model.              


CVA Recommendation:


We recommend that any vaping product in a non-age verified environment must not be on display and be located behind a power wall similar to tobacco products. 


  1. Proposal 4: Restrict the Sale of Flavoured Vapour Products 


We fully support any proposals that impose limitations on the sale of vaping products outside of age restricted environments thus reducing youth access.


CVA Recommendation


We support the proposal to limit the sale of flavoured vape products to age restricted retail locations. The only aspect of this proposal that we do not agree with is the banning of flavoured e-substances that do not contain nicotine.  As previously stated, it is these nicotine free water-soluble e-liquids that provide reformed smokers with the final step in their path to becoming nicotine free. Therefore, we again recommend that the nicotine free products be available within adult only access product vape shops in alignment with your government’s position on access to other flavoured e-liquid products. By only allowing these products to be available within age restricted spaces, adult vapers will continue to have access to these zero nicotine vape products that will assist many in their goal of becoming nicotine free, while limiting youth access.


  1. Proposal 5: New Labeling, Packaging and Health Warning Requirements


There are already various federal Acts and Regulations that address many of the goals of the BC Health Ministry.  The Canada Consumer Product Safety Act contains requirements through the Consumer Chemicals and Containers Regulations, 2001 (CCCR,2001) that e-liquid manufacturers must identify a list of all hazardous ingredients within the product as well as a statement of the first aid treatments. Furthermore, the Government of Canada has posted within “Canada Gazette, Part 1, Volume 153, Number 51: Vaping Products Promotion Regulations” their intent the update the regulations setting the stage for a new national standard.  Within “Canada Gazette, Part II: Vaping Products Labelling and Packaging Regulations”, new national regulations are coming into effect that address:


  • Labelling – Awareness of Health Hazards from Use of Vaping Products
  • Labelling and Packing Protection of Human Health of Safety


Additionally, the Government of Canada passed the Tobacco and Vaping Products Act (TVPA) act on May 23, 2018, to regulate the manufacture, sale, labelling and promotion of tobacco products and vaping products sold in Canada.  These TVPA regulations already restrict packaging and labelling of vaping e-liquids, prohibiting branding that appeals to youth, as well as flavour names that cannot be associated with the categories listed in Schedule 3 of the TVPA. Both the vaping industry and the government has taken steps to make vapour products less appealing to youth in Canada. Health Canada’s regulatory requirements have already put preventative measures in place by federally restricting naming conventions of flavours as well as any portrayal of characters, celebrities, animals and cartoons on all vape product packaging and labelling.


It is important that the Health Protection Branch does not treat vaping products in the same manner as tobacco products by imposing plain packaging on vaping products. The federal government has recognized vaping as a less harmful alternative to tobacco products and has accordingly created separate acts and regulations surrounding packaging in an effort to ensure vaping products are not appealing to youth, with appropriate health warnings and labelling requirements, while still being distinguished from tobacco products. 





CVA Recommendation


We recommend that the Health Protection Branch follow these national regulations to ensure British Columbia’s vape businesses are not at a disadvantage (retailers within the province and manufacturers that sell their products out of Province) and that consumers have access to the regulated vape products they require to greatly reduce their harm.


  1. Proposal 6: Strengthen Restrictions on Public Advertising  


We fully support any proposal that restricts brand-specific advertising in non-age verified environments. We have also seen positive results in working with health authorities and other provincial government bodies who use this model.    


CVA Recommendation


While we agree with all restrictions on brand-specific advertising, it is clearly in the best interest of Canadians to understand their relative risks and to be educated on the key differences between water-soluble nicotine vaping and the unregulated, black market vapes containing vitamin E acetate or illicit THC.


It is important to take a step back and redefine vaping. Vaping is defined as water-soluble nicotine delivery through an electronic device, a process that has been strictly regulated provincially and federally, with no incident of illness for over a decade. The generalization of the term “e-cigarettes” to include unregulated, black market vapes containing nicotine or THC is highly misleading. The evidence now clearly points to THC vape pens laced with vitamin E acetate as the culprit behind the EVALI outbreak, the lung illnesses seen across North America this past summer,

as confirmed by the Centers for Disease Control (CDC) in the United States.


The troubling debate around vaping over the last six months has failed to make the critical distinction between e-nicotine and THC vaping devices, as well as between closed and open pod vaping devices. Closed pod devices, found in convenience stores across the country (and the primary type of devices used in youth vaping), have nicotine levels that are largely sold between 58 and 59 mg/mL. On the other hand, open pod devices bought in adult-only vaping shops can have nicotine levels as low as zero mg/mL, and are customized to meet the needs of adult smokers. The lack of this critical distinction is profoundly hurting smokers who looking to this harm reduction alternative to quit.


It has been widely suggested by a host of advocacy groups, including the Canadian Vaping Association (CVA), that the extreme dose of nicotine carried in closed pod systems, coupled with mass access and irresponsible advertising, has driven youth access in Canada. Policies and reporting that fail to differentiate between the THC or black market vs. regulated nicotine e-liquids, adult-use vs. youth uptake, and high nicotine vape products found in non-age restricted stores vs. regulated vaping products accessed in adult-only vape shops are hurting public health.


According to a recent article in Science Magazine that reviewed a diversity of studies on the efficacy of e-nicotine vaping as a smoking replacement, regulated vaping products for adult smokers is “much safer than smoking.” The article sited a 2018 report by the U.S. National Academic of Sciences, Engineering and Medicine (NASEM), commissioned by the FDA, that concluded that “completely substituting vaping nicotine for combustible tobacco cigarettes reduces users’ exposure to numerous toxicants and carcinogens present in combustible tobacco.”


The article goes onto clarify that although the long-term consequences of legal, regulated vaping are not known, many in the research community say we know enough and “that too many smokers die every day we delay taking reasonable and rational action based on the science to date.” Moreover, specific observational studies and randomized trials suggest that vaping e-nicotine is more effective than other NRTs at replacing combustible tobacco. The authors also suggest that flavours appeal to adult smokers, helping them switch to e-nicotine vaping. Again, looking at evidence to date, they say that the majority of smokers who switch completely to e-nicotine vaping do so by eventually moving from tobacco or menthol e-liquid to other flavours. The Science Magazine article came on the heels of comments by the U.S. Food and Drug Administration Commissioner, who described the “foundational role nicotine must play in ending the scourge of combustible tobacco.”


Canadian health authorities and the public at large needs to understand, in the interest of well-considered public policy, that replacing e-nicotine vaping with combustible tobacco over the next decade could prevent the premature deaths of 6.6 million smokers worldwide while improving the quality of life for tens of millions more. Health authorities and the media must also make a better, more clear distinction between nicotine and THC e-liquid, between nicotine levels, which should be limited to 20 mg/mL, and between regulated vs. black market products. The current lack of distinction and clarity within media reporting and health advocacy groups is putting public health at risk.


We believe it’s in the best interest of Canadians to both understand their relative risk and be educated on the key differences between water-soluble nicotine vaping and the unregulated, black market vapes containing vitamin E acetate or illicit THC. We ask the support of the BC government to call on the Canadian Government to bring back and approve the original list of relative risk statements:


List of statements for use in the education of consumers to understand their relative risks:


  • If you are a smoker, switching completely to vaping is much less harmful option
  • While vaping products emit toxic substances, the amount is significantly lower than in tobacco smoke
  • By switching completely to vaping products, smokers are exposed to a small fraction of the 7,000 chemicals found in tobacco smoke
  • Switching completely from combustible tobacco cigarettes to e-cigarettes significantly reduces user’s exposure to numerous toxic and cancer-causing substances
  • Completely replacing your cigarette with a vaping product will significantly reduce your exposure to numerous toxic and cancer-causing substances
  • Switching completely from smoking to e-cigarettes will reduce harms to your health
  • Switching completely from smoking to e-cigarettes will reduce harms to your health


And lastly, add


  • Only purchase water-soluble nicotine vaping products through regulated sources, never through unregulated pathways, as black market vapes may contain vitamin E acetate or Illicit THC


3.0 Conclusions


While CVA supports the work being done by the Government of British Columbia, we recognize too, that we, as industry players, have a vested interest in the business of vaping. We acknowledge that regulation is and should be part of our business strategy. As such, the CVA is committed to serve as a partner to the Ministry of Health and the Minister to ensure compliance.


We know that research cannot and must not be done in isolation from industry partners. That is why we have encouraged the Ministry of Health and the Government of British Columbia, to work closely with CVA to ensure that the vaping industry is both transparent and compliant in its operations and with regulations. In return, the CVA can provide valuable and immediate insight to the Ministry regarding the experiences and sales activities within vape shops and communities across Canada.


We, therefore, encourage the Ministry of Health to continue to liaise with CVA and

encourage the establishment of an Industry Advisory Committee. A Committee of this nature should be chaired by Ministry and be decorated with a myriad of retailers, manufacturers, advocates, and experts from the vaping industry on a voluntary basis. The terms of reference for the Committee would be adopted when the Committee is established, but for the most part would ensure the involvement of the industry in the development of best practices including:


  • The provision of industry (and expert) advice on augmenting existing regulations and developing further regulation,
  • A repository for factual evidence that currently exists globally – to create better public policy,
  • Assisting in the definition and implementation of industry-related programs and services aimed at/for the vape industry – to encourage compliance of regulations and ensuring industry awareness.


Notwithstanding the establishment of a Committee, CVA is committed to working with the Ministry of Health in BC, the bureaucracy and all other levels of government to create effective and workable regulations to govern the industry. We are committed to regulations aimed at guiding adults who wish to quit smoking in favour of a less harmful alternative and the protection of Canadian youth. 


We appreciate the opportunity to present this submission and look forward to discussing these recommendations with you at your convenience.


Sincerely,


Sam Tam

President – The Canadian Vaping Association

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