From Tobacco Info No. 9 -
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Healthcare organizations want the loopholes in Bill C-32 closed
Health Canada seizes 25 million flavoured cigars
By Geoffrey Lansdell
The fight to end the marketing, distribution, and sale of kid-friendly tobacco products is an ongoing battle, thanks in large part to some glaring legislative loopholes cigar companies continue to exploit.
On October 8, 2009, the federal government amended the Tobacco Act in response to the increased popularity of cigarillos and other flavoured tobacco products made to look and taste like candy. The new regulations were designed to prevent tobacco companies from targeting youth, and took full effect on July 4, 2010.
Bill C-32: An Act to amend the Tobacco Act (also known as the Cracking Down on Tobacco Marketing Aimed at Youth Act), was tabled by Health Minister Leona Aglukkaq, and included eighteen new clauses. On the whole, the amendment was designed to prevent three things: the sale of cigarillos in anything but packs of twenty; the sale of flavoured tobacco products; and the advertising of such products to youth.
The provisions in Bill C-32 provided a new distinction between cigars and ‘little cigars.’ Under the new law, little cigars contain 1.4 grams of tobacco or less, while cigars contain more than 1.4 grams. Furthermore, little cigars cannot be sold in singles or small quantity ‘kiddy packs,’ and they can’t contain filters or flavouring agents (cherry, peach, rum, etc.).
The trouble is that tobacco companies are notoriously ruthless when it comes to exploiting loopholes, and Bill C-32 has its fair share. To skirt the new rules, cigar distributors have marginally increased the size of their cigarillos and replaced their cellulose filters with more tobacco. By producing cigars (rather than little cigars) that contain minutely more than 1.4 grams of tobacco, they have continued flavouring with kid-friendly additives and selling them in single units or ‘kiddy-packs.’ Aside from targeting adolescents who are more likely to have the money to buy in singles or small packs, such packaging generally fails to include the minimum health warning (covering at least 30 per cent of the package) required under the Framework Convention on Tobacco Control, which Canada signed in 2003, ratified in 2004, and began implementing in 2005.
In response to the ongoing problem, a group of nine healthcare organizations, led by Physicians for a Smoke-Free Canada (PSC) and the Canadian Dental Association (CDA), held a press conference in Ottawa during National Non-Smoking Week in January calling on the federal government to close the loopholes in Bill C-32, to extend the ban on flavoured products to include shisha, snuff, and chewing tobacco, and to legislate specific requirements for health warnings on all tobacco products, and not just cigarettes.“In the shadow of Parliament Hill, we were able to find deadly tobacco products that look and taste like candy, gum, or fruit roll-ups,” said Dr. Atul Kapur, president of PSC. “Many of these youth-targeted flavoured products carry warnings that do not meet the minimum international standards, or carry no warnings whatsoever.”
Dr. Kapur went on to illustrate the problem by showing various examples of cigarillos, bluntarillos, and chewing tobacco that are technically legal, yet carry no health warnings.“If Health Canada required these products to carry large health warnings like those on cigarettes, kids would be more likely to understand how harmful these products are. We are seriously concerned that the tobacco companies have exploited the loopholes in the law that was passed in 2009 to continue to sell small, flavoured packages in try-me sizes that kids can afford.”
While calling on Health Canada to address the loopholes that are allowing tobacco companies to get around the well-intentioned legislation, Dr. Kapur commended Health Minister Aglukkaq for increasing the size of health warnings and updating the messaging on cigarette packs. The 16 new graphic warnings take effect on March 21, when tobacco producers must be exclusively manufacturing packages with the new warning labels. Retailers have until June 19 to be fully compliant. And for the first time, 20-packs of little cigars must meet the same standard for warning labels as cigarettes.
Flavoured cigarillo seizure
In an exceptional irony of timing, two weeks after the press conference led by PSC and the CDA, Health Canada tobacco inspectors conducted simultaneous seizure operations on January 31 at the warehouses of three Quebec-based cigar importers. The operations took place at Casa Cubana in Ville St-Laurent, Groupe Tabac Scandinave in Boucherville, and Distribution GVA Inc. in Laval.
“The seizures, which affected 41 different product lines, followed the sampling and analysis of product lines and the issuance of a minimum of two warning letters to each of the importers,” Aglukkaq wrote in a press release. “In total, more than 25 million units of product were seized.”
According to Denis Choinière, director of regulations and compliance at Health Canada,“There were two key provisions that were being contravened: the minimum packaging rule and section 23.1 (of the Tobacco Act) that deals with the promotion of flavouring on little cigars; both the flavouring and the promotion of the flavouring contravene the provisions.” In other words, some products were seized on the grounds that they did not contain at least twenty units, while other products were seized because the packs promoted flavouring.
Following Health Canada’s first enforcement of the Cracking Down on Tobacco Marketing Aimed at Youth Act, PSC issued their own press release on February 1 congratulating the federal government for “Strengthening its enforcement efforts against the marketing of youth-friendly tobacco products.”
At the same time, both Cynthia Callard, executive director of PSC, and Flory Doucas, co-director of the Quebec Coalition for Tobacco Control, pointed out that despite the welcome enforcement of Bill C-32, it doesn’t address the root of the problem. “I’m happy to see that Health Canada is being more diligent with its enforcement,” said Doucas. “But fundamentally, this law is flawed. So where they’re intervening is just on products that haven’t been tweaked well enough to bypass the law. And federally, no government representative has acknowledged that there are serious loopholes and that the industry is systematically exploiting them.”
Similarly, Callard pointed out that by enforcing Bill C-32, “The government is only dealing with half the problem. They’re dealing with products that are on the market that break the law. They’re not dealing with the products that are on the market that don’t break the law. So the risk is that the government will give the impression they have done something meaningful about flavoured products, when they continue to be on the market because the problems in the law haven’t been fixed.”
Naturally, cigar importers see themselves as complying with the law as it is, not exploiting loopholes. According to Luc Martial, who handles government affairs for Casa Cubana, “When the government introduced this legislation, they decided to ban some flavours in little cigars defined mostly by their weight. Why didn’t they just ban flavours in all tobacco products? I don’t know. I don’t understand that. But that’s what they decided to do. So when the government says, ‘If you want to keep selling these products, you better make them weigh more than (1.4 grams),’ what do you think companies are going to do? Obviously, they’re going to increase the weight of their product. And when I hear people say, ‘Oh, they’re finding loopholes,’ the only loophole that exists in C-32 is compliance. If you could comply with the law, you could keep selling flavoured tobacco products. So Casa Cubana exercised the only loophole available to it, which was comply with the regulations put forward by the federal government of Canada.”
Martial’s statement brings us to the crux of the matter: when it comes to tobacco legislation, given the history of tobacco companies, it is almost naive to rely on them to abide by anything as ambiguous as the spirit of the law. On July 4, 2010, however, when non-compliance with Bill C-32 for importers, distributers, and retailers became enforceable, Prime Minister Stephen Harper released a written statement indicating that, “Compliance with these rules will be monitored and enforced in no uncertain terms. Adherence to the spirit of the legislation will also be monitored, and, if necessary, the legislation will be revisited.”
Clearly, the time to revisit Bill C-32 has arrived. In a study conducted by the Quebec Coalition for Tobacco Control released on April 28, 2011, it was revealed that 48.7 percent of the 400 samples of flavoured cigars weighed less than 1.4 grams, making them illegal. And although it took some time, the government has taken a first step to making good on its promise to monitor and enforce the Cracking Down on Tobacco Marketing Aimed at Youth Act.
There is little doubt, however, that ‘the spirit of the legislation’ is also being broken, and the only way to fix the problem is to close the perceived loopholes in the amendment. As Doucas said when the Quebec Coalition study was released, “It’s time to prohibit all flavours in all tobacco products and to close any potential loophole for the industry to exploit.” And until Health Canada bans flavouring additives or amends Bill C-32, we can expect cigar companies to improve the tweaks they have made to their products in order to continue walking the fine line between the letter of the law and the spirit of the law.