• June 15, 2024

Revenant Rule

 Revenant Rule

Image: MarijaBazarova

Image: MarijaBazarova

Canada’s new health minister is breathing new life into a 2021 proposal to ban vape flavors nationwide.

By Stefanie Rossel

Thomas Kirsop

There’s life in the old dog yet: In March 2024, Canada relaunched a three-year-old plan to ban all vape flavors except tobacco, mint and menthol. The regulations were first published in June 2021 in the Canada Gazette, signaling the government’s intention to implement the flavor ban within six months after the obligatory public consultation. But the rule that was supposed to launch in January 2022 never came, and Canada’s health authorities never mentioned the flavor ban again—until Health Minister Mark Holland, in office since July last year, recently revived the idea.

Outrage about the proposed ban among vapers, consumer advocacy groups and the vape industry was as huge in 2021 as it is now: Canada’s planned rule goes further than most flavor bans, which tend to prohibit only certain “characterizing flavors” or flavor descriptors. Under the Canadian proposal, all sweeteners in vaping products would be prohibited, and vape manufacturers would be allowed to create their liquids using only approved ingredients.

They would have to select from a list of 82 approved compounds, 40 of which can be used to impart a tobacco flavor and 42 of which can be used to impart flavor of mint, menthol or a combination of the two. “Menthol tobacco” or a “mint tobacco” are off limits under the rules.

“Should the flavor ban be adopted as it was written in 2021, Canadian users of vaping products will see the removal of nearly all existing flavor profiles in the legitimate vaping products market within 180 days of publication of the proposed order and regulation from 2021,” says Thomas Kirsop, managing director of Canada’s Vaping Industry Trade Association (VITA).

“The only two products on the market that would not require removal or reformulation would be ‘unflavored’ liquids and unadulterated ‘menthol.’ All existing ‘tobacco’-flavored vaping products would need to be removed from the market, reformulated to remove sweeteners and flavoring compounds not on the permitted constituents list and then reintroduced to the Canadian market.”

The proposed rule would also prescribe “sensory attributes standards,” which are defined only vaguely, stipulating, for example, that a vaping product or its emissions should not have “sensory attributes that result in a sensory perception other than one that is typical of tobacco or mint/menthol,” thus limiting manufacturers’ ability to make vape products that have “a highly pleasant smell or taste.”

“Sensory attributes regulations are referenced over 40 times in the proposal, but there is no specific section explaining how these regulations would be drafted, implemented or enforced in a clear manner,” says Kirsop. The VITA interprets this part of the planned regulation as meaning that manufacturers can make their liquids using the 82 permitted compounds, and at some time in the future, the government will pay a third party to smell, taste and possibly vape this product. “If that third party thinks that the liquid does not align with the permitted flavor profiles or is ‘too palatable,’ then that formulation will be prohibited regardless of its adherence to all the objective standards in legislation,” says Kirsop.

Relapse to Combustibles Expected

The impact of such a regulation on Canada’s 1.5 million vapers would be dramatic, according to Kirsop. His organization anticipates a major relapse to combustible cigarettes among consumers. “The number of cigarettes consumed per capita will increase,” he says. “It is well understood that vaping products and combustible products are economic substitutes in the nicotine market. A regulatory impact on one will result in an inverse reaction of the other.”

Kirsop refers to a 2023 study by Abigail Friedman that investigated the effects of e-cigarette flavor restrictions on tobacco product sales in the U.S. and found that while the flavor restriction did impact vaping rates in the manner intended, the impact on legitimate cigarette sales was substantial, with 12 extra cigarettes sold in the legitimate market for every 0.7 mL pod not sold due to a flavor ban. The VITA has similarly calculated that a nationwide flavor ban in Canada would result in additional cigarette sales of almost 4 billion sticks per year.

For the country’s independent vape manufacturers and estimated 1,800 specialty vaping product shops, such a measure would have a significant, possibly existential, impact, according to Kirsop. “It is the variety of flavored vaping products that make a specialty store economically viable,” he says. The illicit market, by contrast, would receive a boost, especially if the flavor ban comes on top of the 12 percent federal vape product tax hike planned for July.

“From any historical reference point, the removal of a product with significant consumer demand from the legitimate market will result in that demand being met by the illicit market,” says Kirsop. “Our investigations lead us to believe that the black market will expand quite rapidly to fill the void. Our only question is whether that illicit trade will favor small players, producing flavored liquids in garages and basements, if it will follow the Australian model, with organized crime groups importing flavored disposable vaping products from overseas, or if it will be some hybrid combination of both.”

There are plenty of cautionary examples close to home. Six of Canada’s 13 provinces and territories have already restricted the sales of e-cigarettes to tobacco-flavored varieties. “In Nova Scotia, over 40 percent of specialty vape stores closed immediately following the flavor ban, and when VITA commissioned an investigations company to survey the market, we found significant illicit trade and a consumer outlook that supported that illicit trade,” says Kirsop. “News reports showed that in the year after the flavor ban, tobacco excise collection increased 13.6 percent. We also identified that consumers are starting to adapt by adding their own third-party commercial flavoring products to vaping liquids.”

Goal Missed

Maria Papaioannoy

Kirsop says it’s too early to determine the impact of flavor bans on youth usage. However, the VITA has found no data that differentiate Nova Scotia, which was the first province to ban flavored vaping products, from provinces that kept them on the market or banned them at a later date. “Nova Scotia shows youth past-30-day vaping behavior has dropped from 25.1 percent to 23 percent since their flavor ban,” says Kirsop. “However, all provinces except Quebec saw youth vaping rates drop in the same category during that time frame, and some of them did significantly better. Alberta saw youth use drop from 19.9 [percent] to 14.8 percent, British Columbia 27.6 [percent] to 16 percent, Manitoba 21.5 [percent] to 16.7 percent and Saskatchewan 29.6 [percent] to 23.7 percent. All the latter have no bans on flavors.”

So, while the intended impact on adolescents remains questionable, the effect on adults would be devastating, according to Maria Papaioannoy of Rights4Vapers. “Flavors are a critical part of what makes vaping such an effective alternative to cigarettes,” she wrote in a letter to Prime Minister Justin Trudeau. “If a person who smokes decides to move to vaping, they do not want to be reminded of the taste of tobacco.” A ban on flavors as proposed, she argues, would mean a prohibition of the entire category through the back door. “Who would pay for an unpalatable product?”

In 2021, Rights4Vapers started a letter-writing campaign, resulting in more than 20,000 Canadians submitting arguments to Health Canada against the proposed regulation. Papaioannoy has organized a similar campaign now. To date, the government has received more than 27,000 letters from adult consumers raising concerns over this ban. In mid-March, Papaioannoy spoke at Health Canada’s stakeholder meeting but left disillusioned. “Consumers had a huge voice in vaping regulation with previous health ministers,” she says. “In this call, all I felt from Health Canada representatives was sympathy, not compassion.”

Like many, Papaioannoy believes that the proposed flavor prohibition is not so much an action of bureaucracy but a mandate being driven by Holland, who formerly worked for the nongovernmental organization Heart and Stroke, a known opponent of vaping.

Both tobacco harm reduction activists hope that as lawmakers debate the measure, reason will prevail. “The wild card is the minister of health,” says Kirsop. “Generally, one would think that policy decisions that could impact millions of Canadian smokers and 1.5 million adult Canadian users of vaping products would be based on scientific data and academic literature and not driven by emotional talking points and flag waving.

“This minister has demonstrated that he has no grounding in literature or the science, and it does not appear at this point that he cares much for it if it does not align with his ideology or that of his former peer group. Ideology forms a very poor starting point for public health decisions.”

Papaioannoy is more optimistic, noting that the proposal still has to go through the Treasury Board of Canada, with the time frame between proposing and enacting being long and opposition strong against a measure that would affect small businesses. “Besides, I believe in the institution,” she says. “Someone from the government will raise the flag.”