Ontario Bill 174 – Summary

Ontario Bill 174 – Summary

On November 1, 2017, Attorney General (Government House Leader) Hon. Yasir Naqvi introduced Bill 174An Act to enact the Cannabis Act, 2017, the Ontario Cannabis Retail Corporation Act, 2017 and the Smoke-Free Ontario Act, 2017, to repeal two Acts and to make amendments to the Highway Traffic Act respecting alcohol, drugs and other matters for first reading.

As one can see by the extensive title of the bill, Bill 174 is an omnibus bill in that they have placed a lot of unrelated and controversial items within the same bill. We can’t say what the motivation might be for this approach, but this tactic has been used by different governments to push things through the the process by avoiding extensive debate of potential issues or as a political weapon against an opposing party, should they vote not to pass the bill.

How an Ontario Bill Moves Through Government

Schedule 3, Smoke-Free Ontario Act, 2017 is the part that applies to vaping products.

Explanatory Note - Schedule 3, Smoke-Free Ontario Act, 2017

Specific points of interest that we found in the bill are as follows:

Definitions to note

 “enclosed public place” means,

  • the inside of any place, building or structure or vehicle or conveyance, or a part of any of them,
    • that is covered by a roof, and
    • to which the public is ordinarily invited or permitted access, either expressly or by implication, whether or not a fee is charged for entry,
  • or a prescribed place; (“lieu public clos”)

“enclosed workplace” means,

  • the inside of any place, building or structure or vehicle or conveyance, or a part of any of them,
    • that is covered by a roof,
    • that employees work in or frequent during the course of their employment whether or not they are acting in the course of their employment at the time, and
    • that is not primarily a private dwelling, or
  • a prescribed place; (“lieu de travail clos”)

“prescribed” means prescribed by the regulations

“promote”, with respect to tobacco products, electronic cigarettes or a prescribed product or substance, means to use any commercial act or practice or to use any commercial communication, through any media or other means, that is intended to or is likely to,

  • encourage its purchase or use or the purchase or use of a particular brand, or
  • create an awareness of or an association with it, or with a brand or a manufacturer or seller; (“promouvoir”)

“use”, with respect to electronic cigarettes, includes any of the following:

  • Inhaling vapour from an electronic cigarette.
  • Exhaling vapour from an electronic cigarette.
  • Holding an activated electronic cigarette.

Requirements for Sale/Advertisement

  • No sale/supply to anyone under 19 (already applies).
  • ID required for anyone under 25 (already applies).
  • No display or handling of vaping products.
  • No promotion of products if they are visible from outside the retail space.
  • Promotion exceptions – Prescribed (restricted) signage and/or document (booklet).
  • No promotions (advertising or sales) in places of entertainment (bars, restaurants, concerts, etc.). This includes the entry/exit area of the place, IF they are being sold/offered by the owner.
  • No sales in medical facilities, locations with a pharmacy, childcare facilities or any sort of educational facility.
  • No products can be sold without proper packaging, to be dictated by regulations.
  • No sales of “certain” e-liquid flavours.  These will be named (defined) within the regulations.
  • No vending machines unless it is a private (no public access) area.
  • Wholesalers and Distributors must submit reports to the Minister.  Requirements will be determined by the regulations.

The MOST disturbing of these are:

No display within the vaping product retail shop. This prevents customers from being able to see or handle any of the products that a shop might carry as well as prevent sampling of e-liquid. As we all know, each device is very different and will provide a very different experience for each customer. And as numerous credible studies have shown, flavour is at the top of the list as a key variable to make a new user succeed or fail in staying away from tobacco products. If consumers don’t know what you have and can’t sample the flavours that you carry, they might as well go on-line and purchase the products that they want and retail stores might as well close up shop.

We have heard from the government that they are working on an exemption in the regulations that will allow promotion and display of products within vaping product retails shops, but we do not know to what extent that might be permitted by those regulations. We also know that we have been “told things” by the government before which have not come to fruition so until it is in writing, your local retail vaping products shop is at extreme risk.

No sales of “certain” e-liquid flavours.  We do not know “how” certain flavours might be named. Will it be specific names of flavours (i.e. “Blue Cotton Candy”) or flavour profiles (i.e. “Cotton Candy Flavours”) or flavour categories (i.e. “candy flavours”) and how would it be enforced since flavour is entirely subjective between individuals.

And what kind of black market would spawn, should a province wide flavour ban be imposed? From an effectiveness perspective, there are many studies proving the need and effectiveness of flavours with vaping products.

At the end of the day, they “may not” name ANY flavours within the regulations, but this ensures that they CAN name any and/or ALL flavours should they choose.

 Prohibited Use

No “use” (see definition) of vaping device in a public space, workspace, educational facilities, childcare facilities (including home childcare) or reserved seating area in sports/entertainment arenas. Exceptions can be granted by the regulations.

Business owners will not be able to troubleshoot your vaping products

No “use” (see definition) of vaping devices in common areas of condominium, apartment building or university indoor (garage, party or entertainment room, hallway, lobby, etc.). Exceptions can be granted by the regulations.

No use of vaping products in a vehicle with a youth under 16 years of age.

Exemptions:

ONLY includes tobacco smoking or use of medical cannabis with a vaping device (NOT general vaping)

Enclosed Workplace: “person who smokes or holds lighted tobacco or to a medical cannabis user who smokes or holds lighted medical cannabis or who uses medical cannabis through an electronic cigarette in an indoor room in a residence that also serves as an enclosed workplace if the following conditions are met”

Hotel rooms: “person who smokes or holds lighted tobacco or to a medical cannabis user who smokes or holds lighted medical cannabis or who uses medical cannabis through an electronic cigarette in a guest room in a hotel, motel or inn if the following conditions are met”

Hospice facilities: “a medical cannabis user who smokes or holds lighted medical cannabis or who uses medical cannabis through an electronic cigarette in a hospice”

Does allow vaping exemption for Scientific Research and Testing Facilities

Testing/Research Facilities: “person who smokes or holds lighted tobacco, who smokes or holds lighted medical cannabis or who uses an electronic cigarette in a scientific research and testing facility for the purpose of conducting research or testing concerning tobacco products, vapour products or cannabis, as the case may be”

This failure to include vaping within the named exemptions MUST be an oversight by the Government. To allow tobacco smoking, but not allow vaping would be absolute lunacy.

Inspector Power

  • Enter without notice
  • Demand, examine, remove for review and/or copy relevant record(s) in printed or electronic format.
  • Remove samples and/or question relevant persons
  • Identify infractions and specify time periods for required correction
  • Seize and force forfeiture of any products in violation

Fines

The following fines apply:

  • Operation of a non-compliant Vending Machine – Up to $2,000 DAILY
  • Wholesale or Distributor failure to file reports – Up to $100,000
  • Vaping in a vehicle with a youth under 16 years of age – Up to $250
  • Directors or Officers of a corporation found negligent of duty – Up to $100,000
  • Owners of a business found negligent of duty may be fined for the following:
Offense Number of Earlier Convictions Maximum Fine — Individual Maximum Fine — Corporation
3 (1) , 3 (2) – Sales to under 19
4, 5 – Advertising, Sale or Promotion violations
0 $4,000 $10,000
3 (1) , 3 (2) – Sales to under 19
4, 5 – Advertising, Sale or Promotion violations
1 $10,000 $20,000
3 (1) , 3 (2) – Sales to under 19
4, 5 – Advertising, Sale or Promotion violations
2 $20,000 $50,000
3 (1) , 3 (2) – Sales to under 19
4, 5 – Advertising, Sale or Promotion violations
3 or more $100,000 $150,000
3 (4) – Presenting Fake ID
6 (1) – Selling in prohibited location
7, 14 (1) (c), 15 (c) – Improper Signage
20 (16) – Interfere with inspectors
0 $2,000 $5,000
3 (4) – Presenting Fake ID
6 (1) – Selling in prohibited location
7, 14 (1) (c), 15 (c) – Improper Signage
20 (16) – Interfere with inspectors
1 $5,000 $10,000
3 (4) – Presenting Fake ID
6 (1) – Selling in prohibited location
7, 14 (1) (c), 15 (c) – Improper Signage
20 (16) – Interfere with inspectors
2 $10,000 $25,000
3 (4) – Presenting Fake ID
6 (1) – Selling in prohibited location
7, 14 (1) (c), 15 (c) – Improper Signage
20 (16) – Interfere with inspectors
3 or more $50,000 $75,000
8 – Improper Packaging
9 – Sale of Prohibited Flavour
0 $2,000 $100,000
8 – Improper Packaging
9 – Sale of Prohibited Flavour
1 $5,000 $300,000
8 – Improper Packaging
9 – Sale of Prohibited Flavour
2 $10,000 $300,000
8 – Improper Packaging
9 – Sale of Prohibited Flavour
3 or more $50,000 $300,000
12 (1) – Vaping in a prohibited area 0 $1,000 (N/A)
12 (1) – Vaping in a prohibited area 1 or more $5,000 (N/A)
14 (1) not (c) – Ensure a vape free workplace
15 (1) not (c) – Ensure a vape free public place
0 $1,000 $100,000
14 (1) not (c) – Ensure a vape free workplace
15 (1) not (c) – Ensure a vape free public place
1 or more $5,000 $300,000
14 (2) – Discipline of employee for following regulation Any $4,000 $10,000

What to do now…

If you are in Ontario, we encourage you to IMMEDIATELY contact your Member of Provincial Parliament (MPP) for a meeting to discuss this bill. If you are a business owner, the MPP for the district in which your business operates is also a potential contact.

Find your MPP

We recommend that you communicate with your MPP using one or more of the following methods (in order of preference for usual effectiveness):

  • Schedule a face-to-face meeting and bring supporting materials
  • Schedule a telephone call and offer to send supporting materials
  • Write a letter and supply supporting materials
  • Send an email with supporting materials

And follow-up using the same or other method to see if they have any questions or would like additional information. The more they hear from you, the more likely it is that you will remain on their radar.

These regulations WILL affect your vaping business and/or you, personally.

Ideally, ECTA would like to see Schedule 3 completely removed from Bill 174 and resubmitted as a separate bill, but AFTER consulting with industry stakeholders and using science and facts for the legislation as opposed to ideology as a driving force to prohibition.

Relying solely on ideological Public Health agencies for input using theories and myths has proven to be a public health hazard when it comes to the lives of smokers, their loved ones and vaping products.

Quit or die is no longer the only option to potentially save lives.

Silence is consent…

3 Responses to Ontario Bill 174 – Summary

  1. Very nice summary, thanks!

    But the summary seems to be missing one huge point:

    “4 (1) No person shall, in any place where tobacco products, tobacco product accessories, vapour products or any prescribed products or substances are sold or offered for sale, display or permit the display of any of the following products, in any manner that would permit a consumer to view or handle the product before purchasing it:
    1. A tobacco product.
    2. A tobacco product accessory that is associated with a brand of tobacco product.
    3. A vapour product.
    4. A prescribed product or substance.”

    This means not only no troubleshooting, AFAIK, but no showing, testing or presentation of any kind as well!

    • Thanks Steve and you are correct. We did not include that in the summary.

      We have heard chatter from the government that they are currently developing an exemption for vape shops to cover display and promotion. But, as we have seen with the government in the past, it isn’t real until it’s on paper.

      I will get this point added.

      Thank you!
      ECTA of Canada