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Quebec judge rules law that prevents vaping from being advertised to smokers violates “freedom of expression”

Quebec is within its rights to legislate on vaping, but a provision banning demonstrations of vaping products inside shops or specialized clinics goes too far, a Quebec judge has ruled.

In a judgment released Friday, the court also invalidated another section of the provincial law prohibiting the advertising of vaping products to smokers seeking to kick their habit.

A legal challenge was brought by an association representing Quebec vape shops and the Canadian Vaping Association.

They argued that parts of the Tobacco Control Act adopted by the Quebec government in 2015 violated their fundamental rights, notably freedom of expression.

Justice Daniel Dumais has suspended his ruling for six months to allow lawmakers to rewrite the problematic sections of the province’s tobacco law to make them valid.

The Quebec association had also argued the province had overstepped its legislative authority by including vaping products.

However, Dumais, who heard arguments in the province’s Superior Court over 10 days last December, ruled Quebec had a right to legislate on the issue.

“Overall, the law is constitutional,” Dumais wrote in a lengthy decision May 4. “Quebec has jurisdiction to legislate as it has done. The Quebec legislature has jurisdiction and could validly pass the contested laws.”

The wide-ranging law was designed in part to put the popular e-cigarette on the same footing as other tobacco products and anti-tobacco groups argued that e-cigarettes needed to be subjected to regulations to prevent youth from using it.

But the judge agreed to strike down two sections of the law that prohibited the demonstration of vaping products inside speciality shops and smoking cessation clinics.

The judge also struck down sections of the law that prevent vaping from being advertised to smokers who aim to stop smoking, ruling it violates freedom of expression.

The Canadian association had argued those sections of the law violated the right to integrity and personal security as well as freedom of expression. The judge also struck down sections of the law that prevent vaping from being advertised to smokers who aim to stop smoking, ruling it violates freedom of expression.

The judge wrote that while the provisions take into account the well being of non-smokers, it seemed to forget the rest of the population -including those smokers who are looking to quit.

“The problem with the current restrictions is that the public – particularly smokers – do not distinguish between smoking and vaping,” the judge wrote. “They must be permitted to know the difference. Rather than silence, it is sometimes necessary to educate and let people know that vaping exists first and foremost for smokers.”


ID please: Here’s what c-store operators need to know about vaping regulations

Buy-marijuana-or-weed-18-years-old-under-21Although Health Canada acknowledges that vaping is less harmful than smoking, the country’s national health overseer also has serious concerns about e-cigarettes and related products. With that in mind, there are a number or rules and regulations c-store operators should keep top of mind.

According to Health Canada, vaping can lead to nicotine addiction, it can cause lung damage, and the long-term impacts remain unknown.

This leads to concerns about the appeal of vaping for young people, a concern manufacturers take seriously. “Our position is very simple: just as we believe that youth should not smoke, we agree that youth should not vape,” says Eric Gagnon, head of corporate affairs at Imperial Tobacco Canada. “We support measures that prevent under-age access to vapour products.”

Rob Colucci, Fontem Canada – blu Vapour, adds, “We recognize that much work needs to be done in striking an appropriate balance between ensuring no youth uptake of vaping products while ensuring sufficient communication with adult smokers is allowed so as to encourage them to switch out of tobacco.

“Fontem Canada – blu Vapour shares Health Canada’s concerns about the increase in vaping product use by youth and agrees that youth access to vaping products and the inducement to use them is a serious and legitimate concern. Accordingly, we strongly support government regulatory initiatives aimed at preventing vaping products to be targeted at youth in Canada and around the world.”

Most vaping regulations are provincial and vary across the country, although generally there is a concerted effort to protect younger people from e-cigarettes and related products. Federally, the Tobacco and Vaping Products Act, which became law on May 23, 2018, protects youth from nicotine addiction and from incentives to use tobacco and vaping products. It allows adults to access vaping products as a less harmful alternative to smoking.

The act creates a national minimum age of access for vaping products: 18 years. It also includes significant restrictions on the promotion of vaping products, such as bans on:

  • advertising that appeals to youth;
  • lifestyle advertising;
  • sponsorship promotion; and
  • giveaways of vaping products or branded merchandise.

Additional restrictions under the legislation came into force late last year. These include bans on:

  • the sale and promotion of vaping products that make the product appealing to youth, such as interesting shapes or sounds;
  • the promotion of certain flavours — like candy, desserts, or soft drinks — that may be appealing to youth; and
  • product promotion by testimonials or endorsements.

Vaping and c-stores: 6 burning questions answered

Screen Shot 2019-05-08 at 3.18.20 PMNot all that long ago, tobacco was the staple for c-stores across Canada. Cigarettes, by the package (large and small) and by the carton (large and small) lined shelves in full display of a steady stream of customers. Those days are gone. In their place are new customers looking to buy a product that has the allure of smoking without, potentially, containing the more than 4,000 chemicals in the typical cigarette.

Electronic cigarettes, commonly called e-cigarettes or simply e-cigs, and related products are becoming a staple for many tobacco smokers and a cadre of non-smokers. As a result, the product category offers convenience stores a new and growing opportunity to draw more customers into their premises more often. The category, however, is not without controversy.

As you enter this brave new world, it’s time to get to know this emerging category.

1. What is vaping?

Vaping refers to the act of inhaling and exhaling – or smoking – a vapour (aerosol) produced by products like e-cigarettes. Vaping products heat liquid formulations, called e-liquids, which are then inhaled.

According to Imperial Tobacco Canada, most vapour products are based on what is called a coil and wick technology. The coil, also known as an atomizer, heats a cotton wick that conveys the liquid, producing the vapour that is inhaled.

Vaping devices come in numerous shapes and sizes, a factor that has confused many in the c-store sector. Some products are small and resemble USB drives or pens. Others are much larger. Despite the diversity of options, however, there are only two types of vaping devices, Health Canada reports. An open system enables the device to be refilled. A closed system requires the whole product or the part that holds the e-liquid to be replaced.

There are also related systems and products including what are called heat-not-burn products that heat tobacco instead of burning it.

2. As a category, is vaping different from smoking?

Absolutely, says Rob Colucci of Fontem Canada – blu Vapour, whose overarching goal as a vaping product company is to transition adult smokers to something better and ultimately eliminate the consumption of combustible (smoking) tobacco. “As a category vapour has exponential growth potential,” he says. “The key to this goal is to help existing adult smokers switch by offering vaping products as a less harmful alternative to cigarettes. Health Canada recognizes and shares this goal, as is made clear on their website where it is noted that vaping is less harmful than smoking.”

3. How prevalent is vaping?

That is a difficult question to answer. A 2017 study from the University of Waterloo, Tobacco Use in Canada, found that in 2015, among Canadians 15 years and older a “substantial number” had tried e-cigarettes. The specific numbers look like this:

  • 13.2% (3.9 million) reported having ever tried an e-cigarette
  • 3.2% (approximately 946,000) used one in the past 30 days
  • 1.0% (roughly 308,000) reported daily use

The use of e-cigarettes is also growing in popularity, according to the report. That popularity appears to be global. In the U.S., for example, a national survey in 2016 found that roughly 4.5 per cent of the adult population were current e-cigarette users. Individuals under 35 accounted for more than half of this figure.

“The vaping market is relatively new and expected to grow rapidly as cigarette sales decline,” notes Michael Nederhoff, Canada’s general manager with JUUL Labs in Toronto. “Some estimate the yearly growth rate of this category is over 15 per cent and could cross $43 billion globally by 2023.”

4. What is the sales potential of e-cigarettes for c-stores?

“Vaping products present a big opportunity for convenience stores,” says Nederhoff. “Vapes are on their way to becoming a sizable product category for convenience store operators. Adult smokers are increasingly interested in what vaping technology has to offer. And regulators and industry are working hard to make sure these products are available in a responsible and controlled way.”

Charis Chrysochoidis, reduced risk products lead for Canada with JTI-Macdonald Corp., in Toronto, points out that the category is likely to expand given a regulatory reversal by Health Canada. “The sale of nicotine containing e-liquids was only legalized in May 2018, so we expect the category to grow over the next couple of years as more adult consumers discover alternative choices to their existing smoking and vaping products. And we think most of this growth will occur through convenience store sales.”

The margin on vape products is also superior to tobacco, notes Stewart Ingles, president of Hilary’s Salesmaster Inc, a national retail distributor based in Concord, Ont. “Convenience stores hardly ever get true dollar margins as they will with this category, so they need to embrace and promote within their stores based on the provincial legal rules.”

“This, in my opinion,” he adds, “is the most important new category to enter this market since the energy drinks.”

5. Will consumers switch from online to in-store?

There is another reason vaping is growing in Canada and has the potential to become a big category in c-stores, says Peter Luongo, Rothmans, Benson & Hedges Inc.’s managing director in Toronto. “Currently online sales are the number one channel for vape product sales, and specialized vape stores are another potential destination for consumers.”

Indeed, says Nederhoff, “convenience stores are one of few brick-and-mortar options for adult smokers to legally purchase vaping devices and products. As such, they play an integral role.”

From a sales perspective, there is no special equipment or features required to sell vaping products. Pricing is also straightforward if c-stores follow the manufacturers’ recommend price point. While prices will vary according to type of product and manufacturer, the market is competitive. C-stores can expect pricing to reflect that competitive market.

6. What do c-store owners need to know about the products?

Understanding e-cigarettes and vaping products has proven problematic. “Initially, the vaping category flooded convenience store owners with complex systems that were hard to explain to both store owners and consumers,” says Chrysochoidis.

JTI is hoping it has cut through this confusion with its new vape system, which Chrysochoidis calls a “game changer.” “Logic Compact offers convenience stores a simple and easy way to use vape, and consumers are responding positively. With its magnetic pods and charger, vaping just clicks with Logic Compact.”

The system, known as a closed tank, uses replaceable 1.6ml pre-filled e-liquid pods. The pods come in four flavours — tobacco, menthol, fresh berries and tropical — and click seamlessly into the device magnetically, as does the charging cable. “Choosing simple, sleek vape technology like Logic Compact makes it easy for convenience store owners to increase foot traffic and revenues and capitalize on the profit opportunity that vapes represent,” says Chrysochoidis.

Other companies, such as JUUL, offer c-stores the option to carry pods in flavours that range from mango to cucumber to Virginia tobacco. These sell for a recommended $20.99 a pack. Device kits, including starter kits, are also essential. JUUL’s starter kit, for instance, includes a rechargeable device, USB charging dock, four JUULpods, and it comes with a one-year limited device warranty.

Then there is the IQOS 3 MULTI, a heated tobacco system and not technically a vape, that gives customers 10 back-to-back experiences without having to charge the IQOS holder in between heatsticks.

Variety defines the vaping market.

Except from The Vape Report in the May/June Issue of Convenience Store News Canada


Health advocates urge Quebec to appeal vaping ruling amid spike in youth vaping

Anti-smoking groups are urging the Quebec government to appeal a court ruling that invalidated certain sections of the province’s tobacco legislation dealing with vaping, as health officials across the country grapple with an apparent spike in youth adopting the habit.

The ruling handed down by Quebec Superior Court on Friday confirmed the province’s right to legislate on vaping, but struck down provisions banning demonstrations of vaping products inside shops or specialized clinics.

It also struck parts of the law prohibiting the advertising of vaping products to smokers seeking to kick their habit.

Flory Doucas of the Quebec Coalition for Tobacco Control said the judgment comes as Canada is dealing with a growing number of youth using vaping products since the federal government passed a law formally legalizing and regulating vaping, or e-cigarettes, in May 2018.

And, she notes, experience with the tobacco industry suggests advertising that targets smokers could also ensnare others.

“It is very worrisome to think that Quebec, one of the only jurisdictions in Canada that had a comprehensive, well-balanced framework for vaping products would now see its framework weakened when in fact other governments _ and the federal government _ is calling on provincial governments to help it tighten and restrict the marketing of these products to address the youth epidemic,” Doucas said in an interview Saturday.

The challenge to Quebec’s Tobacco Control Act, adopted in 2015, was brought by the Canadian Vaping Association and l’Association quebecoise des vapoteries, who argued the law infringed on its members’ freedom of expression.

Justice Daniel Dumais suspended his ruling for six months to allow lawmakers to rewrite the problematic sections of the province’s tobacco law to make them valid.

The Quebec government has not commented on the ruling.

Doucas said the province should appeal, noting the Quebec measures were anchored on prevention and precaution, and make even more sense than they did in 2015.

Although vaping products are less harmful than tobacco products, Doucas said caution is necessary, as is protecting youth against a highly addictive habit whose long-term effects are not known.

Health advocates suggest a rise in vaping among Canadian youth has coincided with heavy marketing and promotion since the federal government passed the Tobacco and Vaping Products Act in 2018.

The Public Health Agency of Canada said in April it was alarmed by the trend and that a new generation of youth addicted to nicotine could lead to a resurgence in smoking and other health problems.

Also last month, federal Health Minister Ginette Petitpas Taylor launched consultations on potential new regulatory measures aimed at reducing the uptick of youth vaping. This consultation, which runs until May 25, is considering measures that include restricting online sales and certain flavours, and restricting the concentration or delivery of nicotine in vaping products.

Doucas said what’s happening elsewhere makes maintaining the Quebec measures even more important.

“Everything is pointing to things getting far more restricted based on this huge surge in youth vaping,” she said.

The Canadian Cancer Society said it is also concerned about youth vaping and called for an appeal.

“The result of this ruling is you could have the potential of having e-cigarette advertising anywhere, at any time,” said Rob Cunningham, senior policy analyst with the society. “That simply would be wrong in terms of protecting youth.”


OCSAUpdate

Changes to Ontario’s Smoke Free Act

The changes to the Smoke Free Ontario Act, 2017 that were set to come into effect on July 1, 2018 are being paused to give the new government the opportunity to carefully review the new regulations related to vaping. Read more