Status of Electronic Cigarettes with Nicotine in Canada is Still Hazy July 21, 2014 10:46

Canadians can still purchase electronic cigarettes containing nicotine and nicotine solution cartridges even though Health Canada has issued a warning prohibiting their unauthorized advertisement, importation and sale. Further, legalities associated with the use of e-cigarettes in workplaces and public places continue to be confusing to many.

Electronic cigarettes – What is their legal status?

  • As we understand it, both the Federal Court of Canada and Health Canada consider electronic smoking products that contain nicotine as "drugs" as per the Food and Drugs Act as well as the Food and Drugs Regulations.Health Canada has also issued a notice and advisory warning people that they should not buy or use electronic cigarettes
  • They have also directed all those who are involved in importing, advertising and selling of e-cigarettes in Canada to stop doing the same if they don’t possess appropriate authorizations.
  •  Further, the e-cigarettes’ nicotine delivery system must comply with the requirements specified in the Medical Devices Regulations.
  •  Establishments need to obtain licenses from Health Canada prior to importing as well as manufacturing e-cigarettes.
  •  The observation of the Federal Court of Canada is that electronic cigarettes are mainly used for delivering nicotine.

In Canada, electronic smoking products containing nicotine do not have market authorization. Therefore, the sale of these products does not comply with the Act.

Here are a few things that we do not know:

  • Are electronic smoking devices without nicotine delivery systems covered by the Act?
  • Is it legal to import, advertise and sell electronic cigarettes that do not have nicotine cartridges or those do not come with cartridges?
  • Will Health Canada issue a policy on compliance or an enforcement policy?
  •  Will e-cigarettes be regulated just like tobacco products?


What are employers doing about Electronic Cigarettes in the workplace?

A number of employers are taking action to comply with regulatory stipulations. In the U.S., Wal-Mart Stores has banned e-cigarettes from all of their offices and stores. Other large employers in the U.S. like Target, General Electric and Home Depot have followed suit. Several employers in Canada are also taking similar actions. The reason for the ban is that these cigarettes contain nicotine derived from tobacco in some form or they are mainly used for delivering nicotine.

As regards the electronic cigarettes that do not deliver nicotine, it is being debated whether they should be considered on par with traditional tobacco cigarettes or not. The response of some of the employers to this issue has been based on the scent-free or scent-sensitive workplace policies that they have adopted. This justifies the employer in banning the use of e-cigarettes in all different forms in the workplace.

Another debate that has been going on is whether e-cigarettes are potentially effective in helping people quit smoking tobacco cigarettes. As of now, conclusive evidence is not available, but employers as well as human resources managers who have developed plans to help their employees quit smoking are keeping close track of the debate. This is because they may be bound to accommodate e-cigarette smokers. As of now, e-cigarettes have not been approved by Health Canada as a product for nicotine replacement or for helping to quit smoking of tobacco cigarettes. 

Final Thoughts

According to many of the action groups of non-smokers, the increased availability of e-cigarettes has served to re-normalize smoking (after the ban imposed on smoking tobacco cigarettes in public places and workplace) and thwarted the progress made in the reduction of tobacco usage. 

Health Canada has not yet specified the legal framework as regards the usage of electronic cigarettes. The regulatory authority also has not clarified as to whether the controls applicable for tobacco products will also be valid for e-cigarettes. As of now, many of the employers have chosen to treat electronic cigarettes on par with tobacco cigarettes, especially because of the uncertainties related to health benefits and regulatory control. In fact, they have deemed that electronic cigarettes should be a part of the efforts being made to maintain a tobacco-free workplace setting. 

It is important that employers monitor advisories issued by Health Canada as regards e-cigarettes on a continuous basis. If they have questions related to establishing policies or how they can incorporate policies on electronic cigarettes into their existing workplace policies, they can get in touch with one of the members at McMillan’s Employment and Labor Relations Group.