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Bill S-5: What does it all mean?

by Jennifer Frank May 23, 2018 2 Comments

Bill S-5: What does it all mean?

In response to some questions we’ve received on the legislative bill that has just passed in senate, we are writing this blog for your reading pleasure and to provide more information on how this will impact you and your favourite shops and manufacturers.

At Redux Vapers, we share the opinion of most responsible retailers that our industry needs regulation – not just requires it. We need to have responsible retailers and manufacturers to ensure that our consumers have access to the best quality product possible. We need to ensure that there is a way to hold someone responsible if they do not. We need to ensure that ‘nay say-ers’ can be educated and that the individuals who require our products have access to them. We could go on all day about what we need in our industry, instead we point to Bill S-5 that will answer a lot of those needs and address some needs that we may not have even considered to begin with.

To that effect, in comes Bill S-5: An Act to amend the Tobacco Act and the Non-smokers’ Health Act and to make consequential amendments to other Acts.

The Immediate Impact

Upon Royal Assent (completion in parliament) there will be 2 changes immediately implemented and enforced with the other changes proposed in the Act to be implemented within 180 days or at a later date. The items for immediate action are: Age Restriction and CCCR, 2001 labeling compliance.

What does this mean for you?

The most notable change is that consumers are required by law to be of legal age in your province to purchase vaping products and show valid proof of age. As most responsible retailers were already self-regulating to this effect prior to the implementation of this Bill, little change will be noticed other than retailers asking for ID more frequently, especially when the person is noticeably under the age of 30.

As of Royal Assent, this is the only immediate change you will notice at the consumer level other than seeing and recognizing CCCR, 2001 labels (if you even care enough to notice or haven’t noticed them already).

What does this mean for retailers?

All vape shops will be required BY LAW to enforce Age Restrictions. This will include requiring valid Government issued ID from individuals in order to sell vapor products. For shops already self-regulating, this is no impact to our current business. To those who don’t ask for ID, there will be consequences that may include fines or other penalties.

Vape shops will also be required to ensure that all e-liquids on their shelves have CCCR, 2001 compliant labels. We are sure that this will be a requirement that is more superficial. For example, does the bottle have a poison symbol, warnings and child proof cap? Then, it is probably compliant. However, ensuring you ask your distributor or manufacturer for information regarding compliance is a good idea. If you knowingly sell non-compliant product, there may be penalties.

What does this mean for manufacturers?

E-liquid manufacturers have the largest immediate impact. They must do the following to ensure they have a compliant product:

  1. Ensure they are using compliant child-proof packaging with one of the following certifications and have proof of certification for required record keeping: CSA-Z76.1, ISO8317 or 16 CFR 1700.20
  2. Ensure they are using CCCR, 2001 compliant labels:
    1. Labels must include all necessary information such as first aid statements, Health Canada statements and other information as required by compliance. The information required changes based on bottle size so not all information is required for every label. The only exception is the Poison symbol and primary hazard statement. There are also guidelines required for sizing and placement that need to be strictly adhered to.
    2. Third party audit by a CCCR, 2001 compliance organization of the labels is also a requirement.
    3. No words or imagery may be used that would lead someone with language barriers to interpret the product as anything other than the intended use. For example, you cannot have pictures of food on the label because an individual (young children, persons with limited language capabilities or reading ability) may interpret the label as being okay for consumption by ingestion.
  3. Ensuring the retailers carrying their products have compliant product by Royal Assent of Bill S-5.

We can expect more manufacturing standards implemented at some point in time once the committee appointed to preparing the documentation has completed their analysis and recommendations and has subsequently been approved for implementation.

Though an exact list of documentation required for manufacturers has not yet been drafted, we can speculate the following information may be on the list based on Health Canada proposals and information required by other industries with similar manufacturing processes. The following documentation related to manufacturing may be required:

  1. Certificates for bottles and packaging
  2. Proof of CCCR, 2001 audit
  3. MSDS, Certificate of Analysis, Flavour Specification Sheets, etc. for all flavourings/ingredients in your e-liquids.
  4. Any ISO/Certification paperwork as requested

Our conclusion for the immediate impact of Bill S-5:

This is only the tip of the iceberg for requirements, but we wanted to provide an inkling of the requirements so that you (the consumer) can understand the majority of the immediate change is felt at the manufacturing level and you won’t have to worry about these, you just have to keep doing you!

The Nitty Gritty

After the initial impact comes the other changes to our industry as we know it. This statement is a fact. We all know that vaping as it exists today is completely different from 5 years ago. We also know that vaping as we know it today will be completely different 5 years from now. This isn’t meant to scare you, it is a simple fact based on how our fast-paced and innovative industry has come into light and how we can anticipate continued growth as the years stretch forward. There are teams all over the world doing research and development for hardware, continual improvements on ingredient safety, more research and studies on health impacts, and just plain more.

With our industry being so young, and the products we use so new, we can expect push back. We can expect some hesitation. We can expect the unexpected. It’s exciting as hell in our opinion. We are already winning with the Regulation: IT’S NOT A BAN. At the Federal level, the Government is ensuring that a less harmful alternative to smoking has a legal place in our market, but with expectations of responsible conduct. Based on what we’ve seen and know, the legislation is quite fair. This is because we were able to have a voice through such organizations such as the Canadian Vaping Association. Even organizations like the Non-Smokers’ Rights Association were standing in our corner. Not everyone will agree with everything, but if you look at it as a whole, Bill S-5 is not all that scary.

With this legislation, we will see high quality vaping products held at a standard and produced in high quality facilities. You can expect in the future to be able to hold someone legally responsible if their product is not held to industry standards. We will see more responsible retailers providing good information and carrying those same high quality products. The Public will begin to be properly educated instead of mislead by bias (though that still tends to happen because of media and general bias *sigh*).

What we won’t see with this legislation? An outright ban of vaping products at the Federal level of Government. Now, the legislation does leave it up to the provinces and municipalities to further regulate. We have seen this in Ontario with the unfortunate introduction of Bill 174. In Alberta, we have Calgary and Edmonton with the Nuisance By-Law and other municipalities with their own regulations such as Red Deer. For these items, it has to be directly addressed with that level of government (as we’ve seen with Ontario) with hopes of a fair outcome.

FAQ: Myth vs. Reality

In this section we would like to address some poor information circulating about Bill S-5. This bad information is why some people are “freaking out”. So, without further adieu, here we go!

_________________________________________________________________

Subject: Flavours
Myth: Banned from production
Reality: Promotional Ban

Here is the incorrect information as provided by the media:

As quoted from the CBC news article:

“Those regulations include a move to cut the number of flavours that can be used in an e-cigarette, banning any flavour designed to mimic "confectionery," cannabis, soft drinks or energy drinks — flavours some parliamentarians believe are designed to hook young people on these devices.”

http://www.cbc.ca/news/politics/ottawa-plain-packaging-vaping-law-1.4662112

Here is the correct information as gathered from the parliamentary act:

As quoted from Bill S-5:

“Flavours

30.‍48 (1) No person shall promote a vaping product set out in column 2 of Schedule 3, including by means of the packaging, through an indication or illustration, including a brand element, that could cause a person to believe that the product has a flavour set out in column 1.”

And, here is Schedule 3:

SCHEDULE 3 

(Sections 30.‍48 and 30.‍49)

FLAVOURS

Column 1

Column 2

Item

Flavour

Vaping Product

1

Confectionery

Vaping products, except prescription vaping products

2

Dessert

Vaping products, except prescription vaping products

3

Cannabis

Vaping products

4

Soft drink

Vaping products

5

Energy drink

Vaping products


http://www.parl.ca/DocumentViewer/en/42-1/bill/S-5/first-reading

Let us try and help clear up the confusion. Right from the Government Canada website FAQ: “The use of flavours in vaping liquids is not restricted under the proposed Tobacco and Vaping Products Act (TVPA). It is the promotion, including by means of the packaging, of certain flavours (dessert, cannabis, confectionary, energy drink and soft drink flavours) that would be banned.”

No flavours are banned from production at this time. There is a promotional ban on the above listed flavours. This means we will be allowed to have flavours that taste like soda and confectionary, but we cannot identify them as such on labels or in advertising. So, we can have a chocolate cake flavour profile. However, it cannot be called “Chocolate Cake”, have a picture of chocolate cake or be advertised as chocolate cake. So, the flavour is now called “Chalk” from “X E-Liquid” and has a brown swirl on the label. It still tastes like chocolate cake? Well, we get to vape that delicious cake.

Prescription vaping products that may be developed later will be allowed to call it Chocolate Cake. Guaranteed though the label will look exactly like prescription medication, will not be all that attractive and can only be accessed by getting a prescription from your health advisor.

Now you can decide: does it matter to you that you can still vape a chocolate cake flavour, it just won’t show a cake on the label or be called chocolate cake?

_________________________________________________________________

Subject: Ingredients
Myth: You can use any ingredient in e-liquid
Reality: Certain ingredients are banned

Here are a list of ingredients provided by the Government that we cannot add to non-prescription e-liquids:

SCHEDULE 2 

(Sections 7.‍21, 7.‍22, 7.‍23 and 30.‍47)

PROHIBITED INGREDIENTS

Column 1

Column 2

Item

Ingredient

Vaping Product

1

Amino acids

Vaping substances, except prescription vaping substances

2

Caffeine

Vaping substances, except prescription vaping substances

3

Colouring agents

Vaping substances, except prescription vaping substances

4

Essential fatty acids

Vaping substances, except prescription vaping substances

5

Glucuronolactone

Vaping substances, except prescription vaping substances

6

Probiotics

Vaping substances, except prescription vaping substances

7

Taurine

Vaping substances, except prescription vaping substances

8

Vitamins

Vaping substances, except prescription vaping substances

9

Mineral nutrients

Vaping substances, except prescription vaping substances

 

http://www.parl.ca/DocumentViewer/en/42-1/bill/S-5/first-reading

Do you really want someone not qualified adding vitamins, nutrients and other ingredients that are not the standard Propylene Glycol, Vegetable Glycerin, Nicotine or Flavouring? We don’t. This is a great thing in our opinion. It will mean that in order to add these items or make health claims, they will have to get it approved properly or be a registered health and drug professional.

_________________________________________________________________

Subject: Health Claims
Myth: Companies cannot make health claims
Reality: Companies would require proper approval to make a health claim

As quoted from the Government of Canada FAQ:

“Manufacturers or importers of vaping products who would like to market their products as having a therapeutic or health effect may be permitted to do so, but only if they obtain an authorization for sale under the Food and Drugs Act (FDA).”

https://www.canada.ca/en/health-canada/programs/consultation-regulation-vaping-products/questions-answers-regulate-vaping-products.html

Manufacturers who get approval for a product by the FDA to make a health claim will be allowed to do so once Health Canada has reviewed all scientific data.

_________________________________________________________________

Subject: Scientific Information
Myth: We are being muzzled
Reality: We are required to provide legitimate scientific data only and not for use in promotion

As quoted from the Government of Canada FAQ:

“Vaping product companies, including retailers, may relay legitimate scientific reports about vaping products to their customers, as long as it is not done as a way to circumvent the restrictions on commercial promotion.”

https://www.canada.ca/en/health-canada/programs/consultation-regulation-vaping-products/questions-answers-regulate-vaping-products.html

Basically, we just have to follow a few rules as to not undermine the potential risks of the product. We cannot use scientific data as a way to promote vaping or companies, rather we can use it to provide information to the consumer on the potential risks and/or benefits of vaping. For example, we can provide scientific data on the effects of vaping both positive and/or negative, but we cannot say “use brand ‘x’ because it is scientifically proven vaping is better for you”.

_________________________________________________________________

If you have any more questions or concerns, feel free to contact us!

Here is a link to the Government of Canada FAQ regarding the legislation if you would like more information:

https://www.canada.ca/en/health-canada/programs/consultation-regulation-vaping-products/questions-answers-regulate-vaping-products.html

This blog is for informational purposes only. The views expressed are that of the author and does not reflect views of any other party. It does not replace any legal information, it is an interpretation thereof.




Jennifer Frank
Jennifer Frank

Author



2 Responses

Chris E
Chris E

July 27, 2018

Good article, Jenn! Thanks!

Gavin Oakland
Gavin Oakland

July 27, 2018

Great post Jen! This is a positive step to #vaping becoming a recognised harm reduction method to stop smoking. Now if only we could get an endorsement from Health Canada!

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