Introduction
In Canada, vaping is currently regulated under the Tobacco and Vaping Products Act (the “TVPA”). After October 17, 2019, vaping will also be regulated under the Cannabis Act (the “Act”). These pieces of legislation, together with their accompanying regulations, are aimed at protecting public health and safety, with a focus on deterring young persons from using and depending on cannabis and tobacco products, including vaping products.
The Cannabis Act
The Act creates a legal and regulatory framework for controlling the production, distribution, sale and possession of cannabis in Canada. The purpose of the Act is to protect public health and safety and, in particular, to protect the health of young persons by restricting their access to cannabis; protect young persons and others from inducements to use cannabis; provide for the licit production of cannabis to reduce illicit activities in relation to cannabis; deter illicit activities in relation to cannabis through appropriate sanctions and enforcement measures; reduce the burden on the criminal justice system in relation to cannabis; provide access to a quality-controlled supply of cannabis; and enhance public awareness of the health risks associated with cannabis use.
Under the current Act, the classes of cannabis that an authorized person may sell are dried cannabis, cannabis oil, fresh cannabis, cannabis plants and cannabis plant seeds. However, as of October 17, 2019, the Act will authorize the legal sale of three new classes of cannabis: edible cannabis, cannabis extracts and cannabis topicals. The legalization of cannabis extracts (products that are produced from cannabis using extraction processing methods or by synthesizing cannabinoids) will permit cannabis vaping products in Canada.
In order to address the public health and safety risks associated with these new classes of cannabis, a series of targeted amendments to the Cannabis Regulations (the “Regulations”) were drafted. Under the amended Regulations, the use of sugars, sweeteners or sweetening agents as ingredients in cannabis extract products will not be allowed. In addition, the use of any ingredient listed in Column 1 of Schedule 2 of the TVPA (which is a list of ingredients that are prohibited in vaping products) will not be permitted in cannabis extract products, except if those ingredients and their level are naturally occurring in an ingredient used to produce the extract.
The amended Regulations will prohibit all representations that could create the impression that a cannabis extract contains certain flavours that are appealing to youth, consistent with the rules that apply to vaping products under the TVPA, outlined below. The amended Regulations will also prohibit the sale of cannabis products or cannabis accessories that have an appearance, shape or other attribute or function that could be considered reasonably appealing to young persons.
Under the amended Regulations, the quantity of THC and CBD per activation will be required to appear on the label of cannabis extracts in a container with an integrated dispensing mechanism. The display of the standardized cannabis symbol on any cannabis accessory that contains a cannabis extract product that is intended to be inhaled and that contains more than 10 ppm THC will also be required. As a result, vaping devices or vaping cartridges that contain a cannabis extract with THC will need to display the symbol directly on the cartridge.
The Tobacco and Vaping Products Act
Similar to the Act, the purpose of the TVPA with respect to vaping products is to prevent vaping product use from leading to the use of tobacco products by young persons and non-users of tobacco by protecting young persons from inducements to use vaping products; restricting young persons’ access to vaping products; preventing the public from being misled with respect to the health hazards of using vaping products; and enhancing public awareness of those hazards.
Under the TVPA, much like the Act, the promotion of a vaping product by means of advertising is prohibited if there are reasonable grounds to believe that the advertising could be appealing to young persons. The TVPA also prohibits the promotion of a vaping product by means of lifestyle advertising, testimonials or endorsements. Furthermore, the promotion of a vaping product in a manner that could cause a person to believe that health benefits may be derived from its use or emissions is prohibited.
As mentioned above, under the TVPA, the use of certain ingredients (e.g. caffeine, vitamins and mineral nutrients) and flavours (e.g. dessert, soft drink and energy drink), as well as the promotion of a vaping product that could cause a person to believe that the product contains such ingredients and flavours, is prohibited. The TVPA also prohibits the promotion of a vaping product by means of advertising, unless it conveys specific information about the product and its emissions, and about the health hazards and health effects arising from the use of the product and from its emissions.
Recent Health Canada Guidance
Recently, Health Canada issued a consultation paper which highlights concerns about the negative health effects associated with tobacco and cannabis vaping products. It is important that companies are aware that Health Canada has recommended the imposition of stricter regulatory measures, such as limiting where advertisements can be placed; requiring that advertisements include a health warning; and restricting the display of vaping products at points of sale.
Given the current similarities between the TVPA and the Act, it is likely that Health Canada will seek to restrict both regimes. As a result, it seems reasonable to conclude that the marketing efforts of cannabis companies will become more challenging following any amendments to these regimes. Thus, companies should seek to roll out their current marketing plans soon and should be aware of any future amendments.