You know the old canard – if it walks like a duck, sounds like a duck and looks like a duck its probably a duck? Well, what we have here in Canada is the opposite. Though Health Canada acts as though there is a ban, suggests there is a ban, and though just about everybody in this country refers to the current situation as a ban, there really is no ban.
E-cigarettes are not a health product. They are a recreational consumer good and as such do not fall under the Food and Drugs Act. Nicotine replacement therapies (pharmaceutical nicotine products used for the purpose of quitting smoking) make therapeutic claims and therefore are covered under the act. E-cigarettes make no such claims.
Despite the fact that many smokers have switched to e-cigarettes, vendors do not claim that their products aid cessation. They also do not claim their product, or nicotine, has any health benefits.
Users do make those claims but policy is based on what producers claim and how the product behaves rather than what people say it does for them. For example I could be a smoker who took up scuba diving. The more time I spent underwater the less I smoked. After a while the desire to smoke lessened more and more and I eventually quit. I could tell you that I quit smoking through scuba diving but it does not make scuba diving a quit smoking therapy.
Granted that interpreting where e-cigarettes should be categorized can be a little confusing since they are rather unique in that they are both like and unlike cigarettes, smokeless nicotine products and nicotine inhalers. What makes them really unique is that they deliver enough nicotine to satisfy smokers who are not trying to quit.
There is a strong advisory on the Health Canada website that has been interpreted as a ban.
There is also an additional document aimed at potential vendors in which you see that though they claim e-cigarettes fall under their jurisdiction they refer to them as “health products”.
Market authorization is granted by Health Canada following successful review of scientific evidence demonstrating safety, quality and efficacy with respect to the intended purpose of the health product.
In addition, the delivery system within an electronic smoking kit that contains nicotine must meet the requirements of the Medical Devices Regulations.
Apart from the point that you require a therapeutic claim to be made to be classified as a “health product”, I think many vapers though they certainly believe their e-cig is healthier than smoking still do not consider it a “health product” nor would they think of it as a “medical device”. E-cigarettes are a consumer product and as such are governed by guidelines of consumer protection (safety standards, product labelling, quality control). In many ways consumers are more fully protected there than under Health Canada guidelines. In fact, in the UK, US and in Canada too (see the ECTA site), e-cigarette vendors have banded together to create standards of excellence for the product and marketing guidelines (no selling to minors, no health claims).(See this ECITA post on how nicotine replacement therapies would not pass the standards required of consumer products – it is a British context but roughly similar to the Canadian).
The wording of the advisory is harsh but the strongest evidence for this not being a real ban is the behavior of Health Canada when someone appeals one of their cease and desist letters.
One courageous vendor has stood up to Health Canada (HC) and remains in business. On a recent VapeCast this vendor, who openly sells e-cigarettes via a website, reported on their experience with threats from HC. They received cease and desist letters and said that when they asked HC for the specific law that was being broken HC would not furnish that information. A little time would pass and then HC would send another letter with another argument. These actions ran the gamut from cease and desist to getting customs to seize product.
If there was a legitimate ban in place all they would have had to do was cite the law and take the vendor down. It appears that while they are saying there is a ban there really isn’t.
The problem is that if you think there is a ban then you start acting as though there is. Many vendors have switched to selling non nicotine e-cigarettes (Health Canada does not seem to have a problem with those as “medical devices”) or have simply closed their doors. And though it is easy enough to say that everyone should stand up for the cause, in Canada, almost of these companies are too small to muster the resources that they think might be required.
There is a lot more to say about this. Stay tuned. This will be a recurring topic on the site. Bullying by Health Canada is depriving smokers of a safer alternative to using nicotine – it is saying in no uncertain terms that smoking is the preferable route.
If you have a story about an experience dealing with Health Canada on this issue leave a comment or send me an email describing it and I will report it (I am happy to keep it as anonymous as you wish).