Health Canada heading in the wrong direction on tobacco and nicotine policy

This blog takes a critical look at Canada’s ongoing review of its tobacco and vaping legislation. Health Canada produced a discussion document to inform the review, posed twenty-two questions and invited comments. Responses from me and David Sweanor are set out below.

Canada’s review of tobacco and vaping legislation

Canadian tobacco control legislation requires a periodic review of its relevance and effectiveness – a good idea. Health Canada published a discussion paper for the legislative review of the Tobacco and Vaping Products Act (2018) – TVPA -and invited comments.

To put it mildly, I was disappointed with the analysis and framing of the issues.

The discussion paper is framed around five objectives and 22 questions with the overarching aim of reducing teenage vaping (and not much else).

A. Protect young persons and non-users of tobacco products from inducements to use vaping products

B. Protect the health of young persons and non-users of tobacco products from exposure to and dependence on nicotine that could result from the use of vaping products

C. Protect the health of young persons by restricting access to vaping products

D. Prevent the public from being deceived or misled with respect to the health hazards of using vaping products

E. Enhance public awareness of those hazards

Health Canada legislative review discussion paper [link]

There seems to be little interest in the consequences for adults or those adolescents for whom vaping may be a harm reduction alternative to smoking. There is no grasp of interactions between adult and teenage vaping or the role that e-cigarettes play as economic substitutes for cigarettes. The idea that there might be trade-offs or unintended consequences of excessive regulation is absent from the discussion and questions asked. The discussion paper is a missed opportunity for a deeper rethink of the role of harm reduction in tobacco and nicotine policy.

Comment by Clive Bates and David Sweanor

My response joint with Canadian expert David Sweanor is here: Comments on Health Canada’s discussion paper. I reproduce the overview critique and conclusion below.

Part 1. Introduction and general observations

According to the consultation document:

The first review of the Act will focus primarily on the vaping-related provisions in the TVPA – in particular, the provisions to protect young persons.

Health Canada legislative review discussion paper [link]

This framing sidesteps key trade-offs and ignores the risk of unintended harmful consequences. Vaping policy cannot be isolated from smoking policy, and youth welfare cannot and should not be isolated from the effects of policies on adults.

We wish to raise five broad issues.

First, vaping and smoking function as alternative nicotine-using behaviours, and e-cigarettes and cigarettes function as economic substitutes. A range of evidence from randomised controlled trials, observational studies, population trends, and quasi-experimental economic analysis shows that vaping and smoking are linked as substitutes. [see our South Africa tax submission for detailed evidence]. It follows that measures that are “tough” on vaping may have the effect, if not the intention, of increasing smoking and creating a net increase in harm. Health Canada and the complex of influential Canadian health organisations that oppose vaping and tobacco harm reduction may be doing more harm than good in tobacco policy. They should recognise that nearly everything they do in opposition to vaping has the effect of protecting the cigarette trade from competition, inhibiting switching from smoking to vaping, and therefore prolonging the epidemic of smoking-related disease.

Second, an exclusive or excessive focus on young people ignores adult welfare and interactions between adult and adolescent welfare. For example, measures taken to prevent trivial risks to young people may create lethal consequences for millions of adults. Also, there are young people for whom vaping functions as a protection from smoking by providing a diversion pathway at initiation or later. Finally, for a coherent public health approach, the link between adult and youth behaviours must be recognised. Young people do not live in isolation from adults. The primary driver of youth smoking initiation is the smoking behaviour of parents or significant adults. [link] [link] Young people are harmed by the economic and health impacts of parental smoking and through second-hand smoke exposure. 

Third, the discussion paper is grounded in a naïve view of risk behaviours and the effect of regulation. Taking measures to prevent youth vaping does not make vaping disappear as far as young people are concerned. Like all measures with a prohibitive element, such restrictions trigger changes in how products are supplied, who supplies them and at what price. On the demand side, regulatory interventions trigger changes in consumer behaviour, and it is wrong to assume that a young person who would otherwise have vaped will switch to behaviours deemed virtuous by Health Canada. For example, young people could access the unregulated black market, participate in the black market as low-level suppliers, mix and sell their own vape liquids, switch to smoking, or switch to the use of other drugs. It would help Health Canada to recognise that for some youth, for some of the time, some sort of substance use is inevitable, whatever adult authorities say or do. Vaping nicotine should be of much less concern than the use of alcohol or cannabis or the use of nicotine through smoking tobacco. While foundations, health activists, motivated academics, and an uncritical media have created a moral panic about vaping, policymakers and legislators need to approach the issue with a sense of proportion. We are not arguing that youth vaping should be of no concern, but that it is a relatively innocuous behaviour compared to, say, binge drinking, driving under the influence, or regular use of cannabis. Youth vaping presents a far lower and probably transient public health risk compared to the risks facing adults who have already smoked for years or decades.

Fourth, there should be better clarity on public health policy goals and, therefore, a focus on reducing smoking as deeply and rapidly as possible. The legislative review should adopt a rigorous public health perspective and focus on minimising the severe health and economic consequences of tobacco use, predominantly arising from smoking. This means reducing smoking in adults and adolescents to the greatest extent possible. In taking this approach, vaping would be regarded as a significant harm reduction opportunity not to be squandered through poorly designed regulation. The danger of focussing on “youth vaping” is that it distracts from the primary public health mission and leads to more cancer, cardiovascular and respiratory disease. The discussion paper is written as though not mentioning these trade-offs and interactions somehow means they do not need to be considered or do not have real-world consequences in terms of adult mortality and morbidity and risks to youth.

Fifth, Health Canada is acting as an enemy of innovation. The discussion paper amounts to a proposal to obstruct the diffusion of technological innovation that addresses the main causes of harm within the world’s most harmful and pervasively available consumer product. Unless Health Canada believes that nicotine use will somehow disappear, the availability of technologies for using nicotine with relatively low risk is an inherently beneficial development and a significant advance. The emergence of a much safer technology than the dominant market incumbent should not be opposed because some young people may use it. The approach of Health Canada and the complex of influential activists that shape policy through Canadian politics is well characterised in this quote about historic hostility to innovation from the innovation scholar Calestous Juma.[4]

Claims about the promise of new technology are at times greeted with skepticism, vilification or outright opposition—often dominated by slander, innuendo, scare tactics, conspiracy theories and misinformation. The assumption that new technologies carry unknown risks guides much of the debate. This is often amplified to levels that overshadow the dangers of known risks. Though Professor Juma was not describing vaping, his description of the hostility to innovation captures the recoil against this critical new technology very well.

Juma C. Innovation and Its Enemies: Why People Resist New Technologies. Oxford, New York: Oxford University Press; 2016. [link]

Though Professor Juma was not describing vaping, his description of the hostility to innovation captures the recoil against this critical new technology very well.

Part 2: Comments on objectives and consultation questions

For specific comments on each of the five objectives, you will have to look at the full submission PDF.

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Concluding response and recommendations

We would welcome further discussion with Health Canada about improving the public health performance of this legislation. Such improvements may include:

• Setting a clear overarching goal focused on morbidity and mortality and, therefore, focussed on reducing smoking at all ages.
• Making policy that recognises that vaping and other smoke-free products represent a public health opportunity that should not be squandered and only relatively minor incidental risks, even if these attract a high political focus.
• Taking a risk-proportionate approach to regulation and recognising the risks to a middle-aged adult smoker are far greater than risks, if any, to an adolescent vaper.
• Adopting a more sophisticated view of youth risk behaviours and how harm reduction also applies to adolescents, especially those experiencing various kinds of disadvantage.
• Assessing likely unintended consequences arising from the existing body of legislation as it applies to non-combustible nicotine products, with appropriate surveillance to detect such harms should they occur. This would include the nicotine cap, restrictions on marketing, excessive control over product design intended to reduce appeal, and inappropriate warning and anti-vaping messaging.
• Improving risk communication, including reinstatement of Health Canada’s ground-breaking proposal to adopt government-endorsed statements about relative risk.
• Strengthening the base of science and economics on which Health Canada bases policy and legislative proposals. The discussion paper is unacceptably weak in this regard.

Following up on our submission, I commented:

In mid-2018, it was fair to say Canada was a leader with a consumer-orientated approach to tobacco harm reduction. Health Canada had proposed publishing a range of informative statements about vaping and smoking that would have been a game-changer in public understanding and would have driven life-saving and welfare-enhancing switching from smoking to vaping.

Instead, it was derailed by a flawed paper published in the BMJ and started to adopt the same moral panic mentality as lavishly funded American prohibitionists south of the border. This was a strategic error and should now be reversed.

The legislative review is an opportunity to take a more sophisticated view of the interactions between smoking and vaping, to consider harm reduction at all ages, and to rethink a policy towards nicotine, when consumed without smoking.

Clive Bates, Director, Counterfactual Consulting, London, 28 April 2022.

Individual response by David Sweanor

David Sweanor also did his own submission: Respecting Parliament and Protecting Health. This submission is broken down as follows:

• Respect for Parliament
• The Purpose of the Law
• Misleading Canadians About Risks of Tobacco Products
• Misleading Canadians about the risks of Vaping Products
• Canadians are Fundamentally misled
• Health Canada and EVALI
• Go to Where the Puck is Going to Be
• Consistency within Health Canada’s Approach to Mental Health and Addictions

The final paragraph sums up the Sweanor submission well:

Harm reduction is a key part of the approach the Department now takes on opioids, cannabis, and other forms of substance use. Yet on nicotine, where the number of users is much greater, the death and disease toll far higher and the potential for risk reduction so dramatic, the Department fails to endorse it. Yet, many of the Canadians at risk from cigarettes are the same people at risk from other drugs and the same people dealing with neurodiversity issues. It is not consistent, or acceptable, to have policies whereby they will be stigmatized, discounted, misinformed and prevented from protecting themselves with respect to nicotine use while Canada follows public health principles on other issues.

David Sweanor, Respecting Parliament and Protecting Health, 27 April 2022

Following up on his submission, David Sweanor comments:

Canada has an opportunity to leverage disruptive technology to dramatically reduce cigarette smoking and the resulting health catastrophe. To do so our country must focus on science and reason and follow the lead we’ve now taken on harm reduction in dealing with opioids, cannabis and other drugs.

Allowing the policy agenda to be misdirected by a manufactured moral panic on vaping repeats the disaster of the War on Drugs that our country is now finally addressing.

The opportunity to prevent over a million premature smoking-caused deaths is there if we can only seize the opportunity rather allow inhumane abstinence-only advocates to seize up our regulatory agenda.

David Sweanor, Adjunct Professor of Law, University of Ottawa, 28 April 2022

Other notable submissions

Other notable submissions will be added here.

It’s not the first time we have seen things going astray in Canada:

• Canada takes a wrong turn after a flawed paper induces moral panic about youth vaping and smoking (July 2020)
• Health Canada consults on the really dumb idea of making vaping a less appealing alternative to smoking (September 2021)