Canada’s tobacco law review delayed and diminished

What should happen when Parliament passes a law that says “the minister must” but the minister chooses not to? In the case of tobacco products, this is no longer a hypothetical question. Months have passed since Parliament’s May 2022 deadline for a ministerial report on the “provisions and operation” of the federal tobacco law. In addition to ignoring the deadline, officials have made clear they also intend to ignore the most controversial aspects of the federal tobacco strategy when their report is finally tabled. The requirement to review and report on this law was not a choice of government but was instead a duty imposed by Parliament during its review of Bill S-5 in 2017. Bill S-5, which expanded the Tobacco Act into the Tobacco and Vaping Products Act, was controversial both for what it did and for what it chose not to do. Other than the cosmetic measure of plain packaging, it advanced no new controls on tobacco products or their manufacturers. The focus instead was on legalizing the vaping market, allowing tobacco companies to expand the types of nicotine products they sold. Health Canada appeared to believe that a liberalized and competitive market for vaping products would encourage smokers to stop using cigarettes and turn instead to a “less harmful” source of nicotine. It is difficult to say with certainty what their expectations were, as their explanation of this harm reduction strategy covers a mere three paragraphs. No specific goals or measurable indicators for this novel approach were ever made public. Although Senators and Members of Parliament ultimately agreed with these reforms, they responded to the many uncertainties by requiring the minister to review the law and report back within four years of Royal Assent. That deadline—May 23, 2022—came and went without a report, a word of apology, or even an excuse. Atul Kapur is an emergency physician and is president of Physicians for a Smoke-Free Canada. Photograph courtesy of Physicians for a Smoke-Free Canada It was not until a few weeks before the deadline that Health Canada began to consult with Canadians on this review, and in the process revealed its intention to address only the issue of youth vaping. The plan appears to be to have little or no mention of the regulation of the tobacco market or progress on harm reduction. There are several reasons that Parliament should hold the minister responsible for a late and incomplete report. Public health will be hurt by a review that is not only delayed, but which also leaves serious problems unaddressed. The problems of adult tobacco use—and the lack of any discernible success for the government’s harm reduction approach—are in need of parliamentary oversight. Even during the COVID pandemic and the opioid crisis, tobacco continues as the highest contributor to premature Canadian deaths and health care costs. Governments in Finland, New Zealand, the United States, and elsewhere are modernizing their approach to this persistent problem. Proposals to end nicotine addiction, to make cigarettes non-addicting, to require pre-market authorization for new tobacco products, and to prevent companies from recruiting future generations have been adopted by other legislatures. Meanwhile, the scope and purpose of Canada’s tobacco laws have not changed since the mid 1980s. The rule of law suffers by the minister’s decision to ignore this statutory duty. Lackadaisical enforcement and, unsurprisingly, inadequate compliance are reflected in reports by Health Canada’s inspectors that the majority of vape stores do not pass inspections. Yet it appears that not a single offender has been prosecuted. Vendors may wonder why they should obey the law when the minister doesn’t. Government accountability suffers when no consequences arise for ministers who ignore such orders of the House and Senate. Laws dealing with other important subjects, including the Cannabis Act, have had similar obligations inserted by Parliamentarians. If nothing happens when this duty to report is shirked, what precedent does that set for other issues? Canadians have little power to hold government to account for the actions it takes or refuses to take to prevent tobacco companies from causing harm: we count on Parliament to do this job. When the government refuses to make public the results of its new harm reduction approach to tobacco, we need Parliament to step in. Atul Kapur is an emergency physician and is president of Physicians for a Smoke-Free Canada. The Hill Times