Bill S5 and DIY - What it means for you

The controversial vaping legislation known as Bill S5 was recently passed by the Government of Canada and as of May 23 2018, has received Royal assent and become law. The Tobacco and Vaping Products Act aims to regulate aspects of the vaping industry related to the manufacture, labeling, sale and promotion of vaping products. 

Health Canada has outlined some specific priorities in this legislation. Their intent is to prevent youth from nicotine addiction and allow adults access to vaping products as a less harmful alternative to tobacco. These are both good common sense priorities with clear intentions. Beyond that however, the impact of the legislation varies widely. Depending on where you’re at with your DIY experience there are certain things you need to be aware of if you’re vaping, mixing or selling e-juice in Canada.

DIY and you
If you make your own e-juice at home for your own use, you’re unlikely to see much, if any, change at all. Certain flavours will have more ingredients listed on the label and you may notice some changes in the packaging or names of some juices at your local store but, beyond that, it is unlikely that Bill S5 will impact you. 

The impact on e-juice manufacturers and retailers
E-juice manufacturers and e-juice retailers will be more affected by these pending regulations. There are several specific provisions listed in the bill that vendors will need to adhere to.

• Banning the sale of vaping products to anyone under 18 years of age (or the age of majority in your province)
• Restricting the promotion of flavours that appeal to young people (confectionery, dessert, cannabis, soft drink and energy drink flavours specifically)
• Prohibits promotional activities like advertising that associates vaping with exciting lifestyles (except in the case where the promotion may be viewed by only adults) 
• Prohibits health related claims regarding vaping products as well as prohibiting certain health related ingredients from being included in e-juice
• Manufacturers must be able to provide on demand details regarding ingredient composition and emission details for all vaping related products.

These provisions are designed to prevent minors from being enticed into vaping by packaging that looks like it could be mistaken for candy, or an e-juice name that's considered appealing to kids. Juice names such as “Unicorn Puke” were actually used as an example when crafting this bill. 

The legislation doesn’t specifically state prohibitions regarding the naming of an e-juice but that doesn’t mean restrictions are not being considered, especially when a popular flavour with a unique name is used as an example. 

This is where a lot of confusion arises surrounding this bill. Let's say for example, you’ve got a great tasting and best selling cola gummy flavoured e-juice. After Bill S5 lands can you still call your e-juice “Crazy Cola Gummies”? Is that name too appealing to kids because the juice shares a name and flavour with a kind of candy? How are consumers supposed to be "allowed access" to these products if they're not able to easily identify their desired flavour of e-juice? 

The answers to these questions are yet to be determined. The legislative framework of the bill has not yet been established and ultimately changes and revisions can be made at any time and at the discretion of the Minister of Health.

E-juice flavours
Another big question surrounding S5 is how it impacts flavouring. Specific ingredients are one thing, but what about specific flavours? We know for certain that the government has explicitly stated that they are not banning flavours. This excerpt is taken from the Q&A posted on the Health Canada website

“The use of flavours in vaping liquids is not restricted under the proposed Tobacco and Vaping Products Act (TVPA). While flavours help make vaping liquids palatable to adult smokers seeking a less harmful alternative to tobacco, the promotion of certain flavours may appeal to young persons and induce them to use these vaping products. In this way, the proposed TVPA seeks to achieve a balance between these competing public health interests.”

This is great news for DIY and the industry as a whole. This bill recognizes that e-juice flavourings are an important part of vaping and having a wide variety of flavours to choose from will continue to be a huge part of the enjoyment of vaping and mixing your own e-juice. 

The ban on ingredients
Another provision of the bill that will directly impact e-juice manufactures is a prohibition on certain ingredients. Below is the schedule of ingredients included that are banned from inclusion in vaping products.

The reasoning behind the prohibition of these ingredients can be linked back to the wording surrounding health claims. Bill S5 prohibits health related statements from being made regarding vaping. Specifically, the bill states that the intention is to “prevent the public from being deceived or misled with respect to the health hazards of using vaping products as well as to enhance public awareness of health hazards associated with vaping”. As long as your e-juices do not contain these ingredients or make any health claims then you will not run afoul of these provisions in Bill S5.

Data retention and ingredient information
Bill S5 imposes a requirement for e-juice manufacturers and retailers to retain detailed ingredient and emission related data for all of their vaping related products. Health Canada requires that this information be available to them on demand from any manufacturer at any time. Failing to provide this information at the behest of the minister could result in the prohibition of sale of vaping products.

Labeling
Another vital component of Bill S5 is the amendments made to the Canada Consumer Product Safety Act. Restrictions regarding toxicity and nicotine content (less than 66 mg/ml or 6.6%) child resistant containers and labeling standards are now in full effect and can be viewed here.

Final thoughts
At first glance there are some great common sense provisions included in Bill S5. Common sense regulations like prohibiting the sale of vaping products to minors and the understanding that a wide variety of different flavoured e-liquid is an integral part of vaping are two important things recognized in Bill S5. The labeling standards set forth in this Bill are also well laid out. Whether or not you agree with those restrictions is a up to you, but the clarity and specificity regarding this particular provision leaves little room for questions. 

It is unfortunate that this bill covers both tobacco and vaping products. Two very different things regulated under the same Act can cause serious confusion and misinformation. We are all aware that smoking tobacco involves combustion whereas vaping does not. The act of using a flame to ignite dried tobacco leaves to produce smoke does not occur in vaping. There is categorical difference in the activities so why are they being regulated in the same legislation? 

As it stands right now there are still many unanswered questions regarding the amendments proposed in the Tobacco and Vaping products Act. Regulatory framework and specifics regarding certain provisions are still under development and certain details aren’t yet available. Until more information is provided the industry is left to comply with what is already included in Bill S5 while simultaneously preparing for a changing regulatory vaping landscape in Canada.

For more information about the topics covered in this blog, be sure to check out the links below.

Complete text of Bill S5

Health Canada Bill S5 Overview

Health Canada Q&A for Bill S5